Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 163
P1225/09	OPINION OF LORD BRAILSFORD in the Petition of MARCO McGINTY Petitioner; against THE SCOTTISH MINISTERS Respondents: ­­­­­­­­­­­­­­­­­________________

Petitioner: Smith, Q.C.; Drummond Miller

Respondents: Johnston, Q.C.; Scottish Government Legal Directorate, Litigation Division

4 October 2011

[1] The petitioner resides in Largs. The respondents are the Scottish Ministers. In this petition for judicial review the petitioner seeks (a) reduction of National Planning Framework for Scotland 2 ("NPF2") insofar as it designates a new power station and transhipment hub at Hunterston as a national development specified in Item 9 of the Annex to NPF2 or, alternatively, (b) reduction of NPF2.

[2] These proceedings were taken to Avizandum on 19 November 2010 and thereafter I was made aware that the decision of the First Division in Axa General Insurance Limited and others v The Lord Advocate and others [2011] SLT 439, had been appealed to the Supreme Court, I delayed issuing my Opinion to await the decision of the Supreme Court in that appeal but as of the date of issue of this opinion it has not been forthcoming. On 7 July 2011 and as recently as 5 September 2011, I heard parties' By Order on whether or not the issue of this Opinion should be further delayed to allow the Supreme Court decision in Axa to be issued, for parties to consider same and whether or not I required to be further addressed in the light of that Opinion. Parties agreed that I should proceed to issue my Opinion rather than delay its issue further.

[3] The case came before me for a continued first hearing on 16 November 2010 in which the respondents argued that the petition was irrelevant et separatim lacking in specification and should be dismissed. They also argued two preliminary pleas, maintaining that the petitioner had no title to sue and, further, that the petitioner was barred by mora, taciturnity and acquiescence in insisting in the petition.

[4] The procedural history of the petition is somewhat unusual and should be mentioned. An order for a first hearing was made on 24 September 2009, assigning 18 December 2009 as the date of that hearing. The matter called for a first hearing on that date before Lady Dorrian. The only substantive matter argued at the first hearing was an application by minute for the petitioner in which he sought a protective and restrictive expenses order. Following this hearing on 28 January 2010 Lady Dorrian made a protective and restricted expenses order limiting the amount of the respondents' expenses for which the petitioner could be found liable in the event that the petition was unsuccessful. The sum to which Lady Dorrian restricted the petitioner's potential liability in expenses was £30,000. This order was made on the basis that the issues raised in the petition were of general public importance, that the public interest required determination of the matters at issue, that the applicant had no private interest in the outcome of the case and that resolution of the proceedings should not be prevented by reason of lack of funds on the part of the petitioner.

[5] Before turning to narrate the arguments advanced on behalf of the parties, I should at this stage make one general observation. As I have already indicated two preliminary pleas, no title to sue and mora, taciturnity and acquiescence were taken and insisted upon by the respondents. At the outset of the continued first hearing it was accepted by counsel for both the petitioner and the respondents that these pleas were potentially determinative of the petition. Notwithstanding that fact, the pleas remained outstanding when the case called before me for a second hearing. I was concerned with this state of affairs and required counsel to address me on the matter before commencing the substantive hearing. I was advised by both counsel that parties were prepared, and indeed wished to proceed to a hearing on all issues outstanding in the petition. Considerable preparation had been undertaken for the hearing. There were a very significant number of productions lodged, albeit that thanks to the co-operation of parties, the form in which productions were lodged was as a joint or agreed bundle of documents (no. 16 of Process). Senior counsel for the petitioner also submitted to me at this stage that determination of the preliminary pleas would require consideration of wider issues germane to the substantive issue in the petition. Senior counsel for the respondents took a narrower approach and, at least insofar as the plea of no title to sue was concerned, appeared to accept that the matter might be determined without undue reliance on material relative to the substantive issue in the petition. In these circumstances I was faced with the difficult issue of insisting that the preliminary pleas be dealt with before consideration of wider matters and thereby reducing the amount of Court time involved in the hearing or, in the alternative, allowing all matters to be advanced at the expense of a considerably longer hearing part of which, dependent on the view I reached in relation to the preliminary pleas, might prove to be otiose. With some considerable reluctance and hesitation I decided to adopt the latter course and permit a hearing on all outstanding matters. I will return this issue at a later stage in this Opinion.

[6] The legislative background to this matter is that under and in terms of section 3A of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") the respondents are responsible for preparing and publishing a National Planning Framework for Scotland. The relevant parts for present purposes of section 3A are in the following terms:

"(2) The National Planning Framework is to set out in broad terms how the Scottish Ministers consider that the development and use of land could and should occur. ...

(4) The framework may ...

(b) describe ...

(i) a development and designate it, or

(ii) a class of development and designate each development within that class, a 'national development'; and

(c) contain any other matter which the Scottish Ministers consider it appropriate to include.

(5) If the framework contains a designation under sub-section (4)(b), the framework -

(a) must contain a statement by the Scottish Ministers of their reasons for considering that there is a need for the national development in question, and

(b) may contain a statement by the Scottish Ministers as regards other matters pertaining to that designation."

Section 25 of the 1997 Act provides, inter alia;

"(1) Where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise -

(a) to be made in accordance with that plan, and

(b) if the development in question is a national development, to be made in accordance with any statement under Section 3A(5) which -

(i) relates to that national development,

(ii) is expressed as applying for the purposes of development management, and

(iii) is to the effect that the development in question (or a development such as the development in question) could and should occur.

(2) For the purposes of paragraph (b) and sub-section (1) -

(a) statements in the National Planning Framework which do not fall within sub-paragraphs (i) and (ii) of the paragraph are to be treated as 'material considerations' ..."

Directive 2001/42/EC relates to the assessment of the effects of certain plans and programmes on the environment. Article 3.2 states;

"... an environment assessment shall be carried out for all plans and programmes (a) which are prepared for ... energy ... transport ... Town and Country Planning or land use and which set the framework for future development consents of projects listed in Annexes I and II to Directive 85/337/EEC or (b) which in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC."

Article 4.1 of the 2001 Directive states:

"The environmental assessment referred to Article 3 shall be carried out during the preparation of the planner programme and before its adoption or submission to the legislative procedure."

Article 5.1 of the 2001 Directive states:

"Where an environmental assessment is required ... an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking account of the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex 1."

Article 6.1 of the 2001 Directive provides:

"The draft plan or programme and the Environmental Report prepared in accordance with Article 5 shall be made available to the authorities ... and the public."

Article 6.2 of the 2001 Directive provides:

"The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure."

Article 6.4 of the 2001 Directive provides:

"Member states shall identify the public for the purposes of paragraph 2, including the public affected or likely to be affected by, or having an interest in, the decision making subject to this Directive ...."

Annex 1 of the 2001 Directive provides:

"The information to be provided under Article 5(1) subject to Article 5(2) and in (3) is the following: (c) the environmental characteristics of areas likely to be significantly affected; ... (h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information;"

[7] Annex 1, paragraph 2 to the 1985 Directive includes "thermal power stations with a heat output of 300 megawatts or more" and paragraph 8(b) includes "trading ports, piers for loading and unloading connected to land and outside ports which can take vessels of over 1,350 tonnes." Annex 2 to the 1985 Directive includes "3(a) industrial installations for the production of electricity (projects not included in Annex 1)."

[8] Parties to the petition were in agreement that the 2001 Directive had been implemented in domestic Scots law by provisions of the Environmental Assessment (Scotland) Act 2005 ("the 2005 Act"). Section 12 of the 2005 Act provides, inter alia:

"(1) A qualifying plan or programme shall not be -

(a) adopted; or

(b) submitted to a legislative procedure for the purposes of its adoption, before the requirements of such provisions of Part 2 of this Act as apply in relation to that plan or programme have been met."

Section 14 of the 2005 Act provides, inter alia:

"(1) In relation to any qualifying plan or programme, the responsible authority shall secure the preparation of an environmental report.

(2) The report shall identify, describe and evaluate the likely significant effects on the environment of implementing -

(a) the plan or programme; and

(b) reasonable alternatives to the plan or programme, taking into account of the objectives and the geographical scope of the plan or programme.

(3) The report shall include such of the information specified in schedule 3 as may reasonably be required ..."

Schedule 3, paragraph 8 of the 2005 Act provides, inter alia:

"An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of expertise) encountered in compiling the required information."

Section 16 of the 2005 Act provides inter alia that:

"(2) The responsible authority shall also -

(a) within 14 days of the preparation of the environmental report, secure the publication of a notice -

(i) stating the title of the plan or programme to which it relates;

(ii) stating the address (which may include a website) at which a copy of the relevant documents may be inspected or from which a copy may be obtained;

(iii) inviting expressions of opinion on the relevant documents; and

(iv) stating the address to which, and the period within which, opinions must be sent;

(b) keep a copy of the relevant documents available at the authority's principal office for inspection by the public ...

(c) display a copy of the relevant documents on the authority's website.

(3) The periods referred to ... must be of such length as will ensure that those to whom the invitation is extended are given an early and effective opportunity to express their opinion on the relevant documents.

(4) Publication of a notice under subsection (2)(a) shall be by such means (including publication in at least one newspaper circulating in the area to which the plan or programme relates) as will ensure that the contents of the notice are likely to come to the attention of the public -

(a) affected by or likely to be affected by; or

(b) having an interest in the plan or programme."

Section 17 of the Act of 2005 provides:

"In the preparation of a qualifying plan or programme, the responsible authority shall take account of - ...

(b) every opinion expressed in response to the invitations referred to in Section 16(2)(a)(iii)."

Section 18 of the Act of 2005 provides:

"(1) As soon as reasonably practicable ..., the responsible authority shall -

(a) make available a copy of -

(i) the plan or programme;

(ii) the environmental report relating to it; and

(iii) a statement containing the particulars specified in subsection (3),

at the authority's principal office for inspection by the public at all reasonable times and free of charges.

(b) secure the taking of such steps as it considers appropriate (including publication in at least one newspaper circulating in the area to which the plan or programme relates) to bring to the attention of the public -

(i) the title of the plan or programme;

(iii) the date on which it was adopted;

(iv) the address (which may include a website) at which a copy of the plan or programme and its accompanying environmental report, and of the statement containing the particulars specified in subsection (3), may be inspected or from which a copy may be obtained.

(iii) the periods referred to in sub-section ... (2)(a)(iv) must be of such length as will ensure that those to whom the invitation is extended are given an early and effective opportunity to express their opinion on the relevant documents.

(iv) the times at which inspection may be made; and

(v) that inspection may be made free of charge; and

(c) display a copy of -

(i) the documents referred to in paragraph (1); and

(ii) the information referred to in paragraph (b),

on the authority's website."

[9] It was a matter of agreement between the parties that the legislative framework which I have outlined was that relevant to consideration of the issues in this petition.

[10] The factual background giving rise to the issue raised in the petition is not in dispute between the parties. The respondents conducted a consultation process on the scope and content of NPF2 between February and October 2007. A discussion draft was issued in January 2008 with a consultation period from 8 January until 15 April 2008. The revised NPF2 was published in December 2008 and considered by the Scottish Parliament between 12 December 2008 and 6 March 2009. A finalised NPF was laid before the Scottish Parliament on 25 June 2009 and published on a Scottish Government website on 2 July 2009.

[11] NPF2 as fully approved by Ministers included as item 9 in a list of 14, a new power station and transhipment hub at Hunterston. The Discussion draft of NPF2, which had, as noted above, been issued in January 2008, contained 9 proposed national developments. Hunterston, was not included in this list. It would appear that Hunterston was proposed as a candidate national development during the course of the consultation process. The consultation response was posted on the NPF website on 8 August 2008. On 19 September 2008 a consultation paper entitled "National Planning Framework 2: SEA (Strategic Environmental Assessment) Supplementary assessment of the environmental effect of candidate national developments; Environmental Report, annex 2: Consultation paper" (hereinafter "the Supplementary Assessment")" was published on the NPF website. This included 52 potential national developments with Hunterston included at number 29. At or about the time of publication of the Supplementary Assessment in September 2008, two further documents were published on the NPF website. These were, firstly, the "NPF2, SEA Guide" and a newsletter. Both these documents publicised the Supplementary Assessment and requested responses to it by 31 October 2008. It was submitted by the petitioner that the Supplementary Assessment was his and the public's only opportunity to comment on the inclusion of Hunterston as a candidate for national development.

[12] On behalf of the petitioner, Mr Smith, Q.C., initially made it clear that his motion was to seek either the reduction of NPF2 in relation to the Hunterston site or, in the alternative, reduction simplicitor of NPF2. Counsel then made reference to what he described as background factual material, essentially material which gave rise to the history, a summary of which I have already narrated. As part of this background the consultative process which was adopted in the lead up to the adoption of NPF2 was explained in detail. So far as the petitioner's submissions were concerned, no material issue was taken with the regularity of this process until the Supplementary Assessment was issued in September 2008. It is this document which gives rise to the issues with which the present petition is concerned. It was submitted that this document was a supplement to NPF2 in relation to an environmental matter. This much was said to be clear by consideration of the terms of the document itself and reference was made to paragraphs 1.5, 1.6, 1.8, 1.11, 1.17.5 and 2.4. Hunterston features in this document at paragraph 29, this being the first time that it had so featured in a published document. It was submitted that Hunterston had not been properly considered at the previous consultation stage. The Supplementary Assessment also made no statement about the need for the Hunterston site. Having regard to those considerations the submission was that the Supplementary Agreement failed to comply with Article 6 of the 2001 Directive and sections 16 and 17 of the 2005 Act.

[13] Intimation of the Supplementary Assessment was made in the Edinburgh Gazette on 23 September 2008. The notice in that newspaper gave information as to the website where the Supplementary Assessment could be viewed and requested that expressions of public opinion regarding the report to be provided by 31 October 2008. This amounted to a period of about six or seven weeks to make responses to the Supplementary Assessment. The petitioner stated that this period of notice was inadequate and did not comply with the obligations incumbent upon the respondents relating to notice and consultation in relation to documents such as NPF2.

[14] In response to these submissions senior counsel for the respondents submitted that the publicity given to the Supplementary Assessment on the environmental effects of candidate national developments complied with the requirements of the 2001 Directive on the assessment of the effects of certain plans and programmes on the environment and the 2005 Act. It was submitted that the six week consultation period for the Supplementary Assessment complied with the requirements of both the 2001 Directive and the 2005 Act. Moreover, the consideration given to reasonable alternatives during the NPF process complied with the requirements of the 2001 Directive and the 2005 Act.

[15] In developing this argument it was observed that Article 6 of the 2001 Directive did not set out detailed requirements for publicity and consultation. The requirement was to provide that authorities with responsibility for the environment and the public "... be given an early and effective opportunity within appropriate time frames ..." to comment on draft plans and programmes. Those requirements had to be read along with the provisions of section 16(2), (3) and (4) of the 2005 Act, which provide that as well as sending a copy of the environmental report and any plan or programme to which it relates to the consulting authorities, the responsible authority shall within 14 days of preparation of such a report, secure publication of a notice pertaining thereto which shall contain certain specified information.

[16] It was further submitted that when properly analysed the complaints in the petition concerned matters of judgment or discretion and that no established administrative law ground for review was made out by the petitioner.

[17] The matters raised in the petition were, it was submitted, essentially matters of judgement or discretion which are primarily entrusted to a decision maker. As such, there is a wide range of opinion as to, for example, an appropriate means or method of publication on consultation. The Court should not interfere with the exercise of such discretionary decision making except on an established administrative law ground of review. No such ground was pled or made out in the present case. Planning judgement was a matter primarily for the decision maker not and for the Courts. Reference was made to Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 NLR 759, per Lord Hoffman; R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env. LR 406 at para. 106; Belize Alliance of Non-Governmental Organisations v Dept of Environment [2004] UK PC 6 and Skye Windfarm Action Group [2008] CSOH 19 at paras. 41, 62.

[18] The respondents argued in the alternative that esto there had been any breach of the 2001 Directive and 2005 Act, there had been substantial compliance with both the Directive and the Act and any breach had no practical effect with the result that the Court should exercise its discretion and refuse to reduce NPF2 or any part of it. Compliance with the Directive was not a question of a formulistic approach to its provisions but required substantial compliance with its requirements in order to ensure that its purpose was fulfilled (C-431/92 Commissioner of the EC v Germany [1995] ECR 1 -2189). As already noted, the respondents had two further arguments, that the petition was in any event barred by mora, taciturnity and acquiescence and, further, that the petitioner had in any event no title and interest to present the petition.

[19] In relation to the argument on mora, taciturnity and acquiescence, the respondents commenced by reminding me that the consultation period in respect of the Supplementary Assessment ended on 31 October 2008, consideration of NPF2 by the Scottish Parliament ended on 6 March 2009 and that the finalised NPF2 was published on 25 June 2009. The petitioner's position, as set forth in an affidavit sworn by him and lodged in process, was that he first became aware of Hunterston being included in NPF2 when he attended a public meeting in the Largs on 28 July 2009. In relation to the steps taken after that public meeting the petitioner produced a document entitled "Timeline of Steps Taken after Solicitor Instructed". On the basis of this document the petitioner had contacted solicitors on 11 August 2009 and completed forms in relation to legal advice and assistance on that date. Legal advice and assistance appears to have been approved on 14 August 2009 and on that date steps were taken to instruct counsel to advise on the matter. Counsel was instructed on 31 August 2009 and a consultation took place on 11 September 2009. Counsel was instructed to draft a petition on 14 September 2009. The present petition was lodged on 23 September 2009. On this timeline there is a period of approximately seven weeks between the petitioners' assertion that he first became aware of the inclusion of Hunterston in NPF2, and the commencement of the present proceedings. The respondents' position was that it was incorrect to regard the period of seven weeks from the time when the petitioner maintained he became aware of the inclusion of Hunterston in NPF2 to the commencement of the present proceedings as the relevant period for the purposes of consideration of the plea of mora. Whilst it was accepted by the respondents that of that period of seven weeks, some four weeks were attributable to matters outwith the control of the petitioner that consideration was also irrelevant. It was submitted by the respondents that the correct approach was to have regard to the whole period after the promulgation of the Supplementary Assessment up to the publication of the finalised NPF2 in July 2009. Against that background it was submitted first, that mere delay is not sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice. Secondly, that applications for judicial review should be brought at the earliest possible opportunity and that failure to do so may lead to an inference of acquiescence which will be fatal to the application. Thirdly, that prejudice to the respondents could be shown to be constituted by the detriment to good administration occasioned by the delay in bringing proceedings and fourthly, that the question of whether delay amounts to acquiescence or would give rise to prejudice such as to bar the remedy is one of fact and degree (see King v East Ayrshire Council 1998 SC 182, per Lord President Rodger at 188, Uprichard v Fife Council [2001] Env. LR 8 at paras 17-19, R (Burkett) v Hammersmith & Fulham London Borough Council and Another [2002] 1 WLR 1593, per Lord Hope at paras 61-66 and Sommerville v Scottish Ministers 2007 SC 140 at paras 90-94). It was submitted that by applying these propositions to the facts and circumstances of the present case it could be seen that the present application for judicial review was not brought at the earliest opportunity. Having regard to the publicity given to the Supplementary Assessment, the respondents were reasonably entitled to assume that any person who wished to object to the NPF2 had chosen not to do so and had acquiesced in the process and that the delay in raising proceedings resulted in material prejudice and was detrimental to good administration. Considerable uncertainty would be caused to the planning system if late challenges of the present sort were to be allowed to proceed. It was submitted that in the area of planning administrative, certainty was of particular importance.

[20] The respondents' final submission was that the petitioner had demonstrated no title and interest to bring these proceedings. On the petitioner's own averments he resided approximately five miles from the site at Hunterston. His only claim was that as a member of the public who used the area for recreational purposes, he was entitled to be consulted under the planning regime in relation to any plan or programme likely to affect the area. He did not sue as a member or representative of a group or organisation with an interest in planning matters, the natural environment or habitat.

[21] The respondents initially reminded me that the starting point for any consideration of title is that dicta of Lord Dunedin in D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7 that "for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies." It was submitted that in the present case the averments made by the petitioner in relation to his residence and recreational group use of the Hunterston area did not support the existence of any such relation or denial or infringement of right. Further, this was not a case in which the petitioner, by objecting to a planning application, had brought himself within the category of those who have sufficient interest for the purposes of challenging by means of judicial review. The highest that the petitioner's position could be stated was that he was a person who had in a broad sense an interest in what takes place in his or her locality, but does not have any legal interest or legal relation to support title to sue.

[22] Having outlined the submissions it is now necessary that I return to the issue of the preliminary pleas. Since hearing the submissions in this case there has been a significant development in relation to the law on title and interest. This issue has been considered by the First Division in the case of Axa (supra). In Axa (supra) the petitioners brought a petition for judicial review seeking declarator that the Damages (Asbestos-related Conditions) (Scotland) Act 2009 was unlawful and sought the reduction of that Act. The petition gave rise to issues of the petitioners' title and interest both as victims under Article 34 of the European Convention on Human Rights and at common law. The question of title and interest as a victim under the Convention is not relevant to the present petition. The First Division did, however, consider at length the issue of title and interest at common law, an issue which has direct relevance to the present petition.

[23] In Axa (supra) the Court considered the, arguably differing, approach taken to title and interest at common law by Lady Smith in Forbes v Aberdeenshire Council [2010] CSOH 1 and Lord Emslie, the judge at First Instance in Axa, concluding, as I read the Opinion, that any perceived differences were reconcilable. At paragraph [46] of the opinion in Axa (supra) the Court approved the approach to title and interest in the decision of the Lord Ordinary. The approach taken by Lord Emslie at First Instance in Axa (supra) was a careful formulation of the law after he had considered and reviewed the principal authorities on the subject and, having been approved by the First Division, is the most authoritative statement of the correct approach to be adopted when considering the issue of title and interest at common law. The approach taken by Lord Emslie is quoted in full at paragraph [39] in Axa (supra) in the following terms:

"Against that background the domestic rules [on title and interest to sue] may, like Article 34 of the Convention be seen as intending to exclude access to the courts were a pursuer's interest in, or connection with, the subject matter of a proposed litigation is remote, tenuous, academic or theoretical. Mere busybodies should not be permitted to take up court time, and cause expense to others, where the matters in issue, and indeed the outcome of proceedings would not practically affect them in any relevant manner. In certain contexts, no doubt, as mentioned by Lord Dunedin in his speech in D & J Nicol v Dundee Harbour Trustees 1915 (FC) HL 7, a pursuer must be able to identify some specific legal status or relationship to serve as the basis for court action. Only a contracting party, for example, can ordinarily sue on, or for breach of, a contract; prima facie it is only trustees who have the right to pursue claims relative to trust property; and only an injured party, to the exclusion of relatives, employers, business associates and the like, can claim damages for negligence. But in other cases, especially those with a public law element, the qualifying relationship may be of a rather broader and more general nature as illustrated by the authorities to which I have referred. Accordingly, where a party's personal, social, political, economic or proprietary interests are demonstrably affected by some real (as opposed to merely academic or theoretical) public law issue or grievance, then as a general rule he will be held to have title to raise proceedings for judicial review in that connection".

[24] In applying those principles to the present case the starting point is, of course, that the present petition raises an issue of public law. That being so it may, following the approach of Lord Emslie, be somewhat easier to establish title and interest than it would be in a private law dispute. It is, however, further clear that title and interest do not flow automatically to any person in a matter of public law. There is still a test which a petitioner must satisfy to qualify title and interest. As was made plain by the Division in Axa (supra) that test will almost inevitably be fact sensitive. I accordingly require to consider the facts of the present case in order to determine whether or not there is a sufficient link of the sort described by Lord Emslie in the passage I have quoted to qualify a title and interest.

[25] As I have already noted, the relevant factual circumstances in the present case are that the petitioner resides at Largs, some five miles distance from the site with which this application is concerned. His only connection with the site, beyond that degree of geographical proximity, is that he occasionally uses it on an informal basis for recreational purposes. Without in any sense wishing to denegrade such usage, from which I have no doubt the petitioner obtains both pleasure and benefit on the occasions that he exercises it, it cannot I think in fairness be regarded as other than somewhat vague and remote. Putting the matter at its highest for the petitioner, he may, as an individual, be regarded as having a title to sue in order to "prevent a breach by a public body of a duty owed by that public body to the public" (per LJC (Ross) in Wilson v IBA 1979 SC 351).

[26] It is however clear that a petitioner must establish an interest to sue as well as demonstrating title to sue. In Axa (supra) at paragraph [42] the First Division indicated that to qualify an interest a person must have "a real and legitimate interest to protect", that he must establish "some real and practical interest" and that the interest must not be "remote, tenuous, academic or theoretical". Applying that approach to the present case leads in my view to the conclusion that, even if the petitioner can establish a title to sue, he cannot qualify as having an interest to sue. He does not in my opinion have a "real and legitimate" or "real and practical" interest to bring proceedings. He does not reside adjacent to the site and is not therefore a neighbour. His use of the site is limited, intermittent and non-essential. The type of usage he exercises over the site could in fact be exercised over any area of land to which the public has access at any location in Scotland. He does not sue as a member or representative of a group or organisation with title or interest. If an interest of this sort were to constitute sufficient interest to sue in a public law question then any member of the public who, on occasion, used a piece of ground for recreational purposes would have a title and interest to challenge a public law decision which affected that ground. I specifically put that proposition to senior counsel for the petitioner who accepted that it was well founded. I do not consider that it is either desirable or, perhaps more pertinently, necessary for the discharge of public bodies to be subject to challenges by persons, no matter how well intentioned they may be, whose link with a site or subject are as remote as this. In these circumstances, whilst I accept following the approach of Lord Emslie in Axa (supra), that the present petitioner may have a title to sue, I have formed the view that he does not qualify as having an interest.

[27] In relation to the plea of mora, I am of the view that the primary position of the respondents is well founded. The petitioner asserted that he was unaware of the inclusion of Hunterston in NPF2 until 28 July 2009, some seven weeks before these proceedings were instituted. That assertion is made in an affidavit which, as the respondents correctly observed, they can neither admit nor deny as it is outwith their knowledge. Had the period of delay been confined to this seven week period, which in fact falls to be reduced by some four weeks by reason of delay outwith the petitioner's control, there would have probably been no merit in the plea of mora. I do not however consider that the correct approach is to confine consideration of delay to the seven (or three) week period. Whilst I appreciate that I stray into the substantive merits of the petition, I have formed the view that the procedure followed by the respondents in ensuring compliance with the requirements of the relevant provisions of the 2005 Act and the purpose of the 2001 Directive in regard to NPF2 were sufficient and did not constitute a breach of duty. That being so, I consider that the question of delay in raising proceedings by a person in the position of the petitioner has to be judged against an objective standard. Against that standard the petitioner ought to have been aware of NPF2 in September 2008, a year before the petition was presented.

[28] Against that background it is, in my view, readily appreciable that there is considerable merit in the arguments advanced by the respondents in support of the plea of mora. They have proceeded throughout a consultation process, and for some months after that process ended, without knowledge of any challenge to a decision they have made. The challenge would plainly be late and to open up a consultation process at this stage would be likely to be disruptive and prejudicial to good administration. In these circumstances I consider that the plea of mora is well taken and should be upheld.

[29] I return to the issues raised in paragraph [4] of this Opinion. It will be seen that I have formed the view that the first and third pleas-in-law stated by the respondents are well founded and fall to be upheld. I felt able to uphold the respondents' first plea-in-law, no title (or interest) to sue, without any regard to the substantive merits of the petition. I accept that consideration and determination of the third plea-in-law, mora, taciturnity and acquiescence, required at least to some extent consideration of the merits of the petition. The position is however, that this matter was, in my view capable of being resolved on the basis of preliminary pleas. Having regard to that consideration I have some anxiety that the matter was only resolved after a full hearing. Preliminary pleas are intended to avoid the necessity of full hearings when cases are capable of being determined on the basis of some argument of narrower or more confined scope than the whole issues in a case. As such, their purpose has always been to encourage expedition and avoid unnecessary expense. I can only indicate that I consider it unfortunate that in this case parties did not seek to deal with the preliminary pleas before embarking upon a full hearing. It also follows that, having reached the view I have in relation to both preliminary pleas, there is no necessity for me to determine any issue relative to the substantive merits of this petition. Indeed, going further, it may be inappropriate for me to express fully developed views on issues which are, insofar as proceedings before me are concerned, no longer relevant. I have however, in dealing with the plea of mora, given an indication of my views on the merits of the petition and for completeness I expand upon these to some extent.

[30] The 2001 Directive related to the assessment of the effects of certain plans and programmes on the environment. Parties agreed that this Directive had been implemented in Scots law by the 2005 Act. In consideration of the complaints raised in the present petition I am of the view that it is necessary to consider whether or not the respondents have complied with the relevant provisions of the 2005 Act. So far as that question is concerned there is, in essence, no complaint made by the petitioner with regard to the respondents' performance of their duties until the promulgation of the Supplementary Assessment in September 2008. Essentially the criticisms of the process following promulgation of that document are confined to complaints about the type of publicity afforded to the publication and to the periods allowed for consultation, having regard to the inclusion for the first time of the site at Hunterston.

[31] In relation to publication, the starting point, and underlying ethos so far as I can determine to this area of the law, is to seek to ensure that members of the public "... be given an early and effective opportunity within appropriate time frames..." to comment on draft plans and programmes (Article 6 of the 2001 Directive). Details of how this over-riding purpose shall be achieved are set forth in section 16 of the 2005 Act. I consider that the respondents have complied with both the detailed requirements provided in section 16 of the 2005 Act and, further, with the underlying ethos determined from the 2001 Directive. Compliance with the requirements of section 16 of the 2005 Act was made by advertisement in the Edinburgh Gazette newspaper. Criticism was made of this because that newspaper is not of wide publication and is not readily available, or even known by, members of the general public. I do not consider that that argument can succeed. The Edinburgh Gazette is the recognised method in Scots law of publishing formal and legal notices. As long as that status remains, advertisement within its pages should in my view be regarded as a proper means of bringing to the attention of the public matters such as the Supplementary Assessment. Beyond this, I would observe that the Supplementary Assessment was promulgated through the respondents' website. Whilst I readily accept that many members of the public will rarely have recourse to usage of the respondents' website it does appear to me to be an entirely proper means of making information available to the general public. Any person maintaining an interest in matters such as those raised in the Supplementary Assessment would, in my view, be likely to periodically check for information which might be of interest to them. It is true that there was no formal notice of the Supplementary Assessment in any local newspaper and this is cited as a reason by the petitioner for an alleged failure to afford to persons such as him an early and effective opportunity to comment on plans such as the Supplementary Assessment. I acknowledge that publication in a local newspaper might well be an effective means of bringing such matters to the attention of the public. I do not however consider that it is the only means of so doing. More importantly, I do not consider that it is a necessary requirement in the absence of a specific provision to that effect. Such a requirement would add considerably to the burden and cost of the administration of strategic planning by the respondents. Its precise effectiveness would be unknown. It appears to me to constitute an unnecessary and onerous obligation upon the respondents in circumstances where, as already discussed, there are other methods of bringing matters to the public attention.

[32] For those reasons I am of the view that there has been no breach of either the 2001 Directive or the 2005 Act. I do not, as already explained, require to make a decision in relation to those matters. For the reasons outlined above it will however be clear that the prayer of the petition was not established and would fallen to have been refused.

[33] In these circumstances, I will uphold the respondents' first and third pleas-in-law. This will result in the dismissal of the petition. I will reserve the question of expenses meantime.