EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 78
Lord Clarke Lord Brodie Lord Kingarth	P1225/09 OPINION OF THE COURT delivered by LORD BRODIE in the cause MARCO McGINTY Petitioner and Reclaimer; against THE SCOTTISH MINISTERS Respondents: _______________

Act: Smith QC; Drummond Miller LLP, for Patrick Campbell & Co, Solicitors

Alt: Moynihan QC, Douglas Ross; Scottish Government Legal Directorate

13 September 2013

Introduction

The parties and the National Planning Framework

[1] The petitioner resides in Largs, some five miles from the coastal site at Hunterston, Ayrshire, which is presently occupied by a bulk handling terminal and marine construction yard ("the Hunterston site"). The petitioner is a keen birdwatcher who visits the inter-tidal mudflats in the vicinity of Hunterston there to pursue his hobby. He is a member of the Royal Society for the Protection of Birds ("RSPB"). The mudflats are part of the Portencross Coast site of special scientific interest. The petitioner wishes the mudflats to be preserved as a habitat for birds. Separately, he has concerns over the harmful effects of carbon dioxide emissions consequent upon industrial processes and would wish such emissions minimised. He questions the need for a further thermal power station in Scotland.

[2] The respondents are the Scottish Ministers. In terms of section 3A of the Town and Country Planning (Scotland) Act 1997 they are responsible for preparing and publishing a spatial plan for Scotland to be known as the "National Planning Framework". The purpose of the National Planning Framework is to set out in broad terms (for the time being) how the respondents consider that the development and use of land could and should occur. It must contain a strategy for Scotland's spatial development and a statement of what the respondents consider to be the priorities for that development. Among other matters that it may contain, the National Planning Framework may describe a development and designate it a "national development". In the event that the National Planning Framework contains such a designation it must further contain a statement by the respondents of their reasons for considering that there is a need for the national development in question: 1997 Act section 3A(5)(a).

The National Planning Framework for Scotland 2: consultation and adoption

[3] In terms of section 3B(1) of the 1997 Act, the respondents must lay the proposed National Planning Framework before the Scottish Parliament and they are not to complete their preparation of the Framework until the period for parliamentary consideration his expired. In terms of section 3B(3), in preparing or revising the Framework the respondents are to have regard to any resolution or report of, or of any committee of, the Scottish Parliament made during the period for parliamentary consideration. However, as appears from sections 3B and 3C of the 1997 Act, notwithstanding the provisions for parliamentary consideration, responsibility for deciding upon the final terms of the National Planning Framework for Scotland and its adoption lies with the respondents.

[4] A National Planning Framework, entitled National Planning Framework for Scotland 2 ("NPF2") was laid before the Scottish Parliament and published by the respondents on 25 June 2009. NPF2 described and designated, inter alia, the project for a new clean coal-fired power station, container transhipment hub, maritime construction and decommissioning yard, and associated energy and industrial development at Hunterston ("the Hunterston project") as a national development in terms of section 3A(4)(b) of the 1997 Act (see NPF2, paragraph 105, item 9 and annex 9).

[5] Section 3A(10) of the 1997 Act envisages that the preparation or review of a National Planning Framework will proceed on the basis of consultation and that this consultation will involve the public at large. Separately, the Environmental Assessment (Scotland) Act 2005 makes provision for the evaluation of and the consultation on qualifying plans and programmes. The 2005 Act was intended to transpose Directive 2001/42/EC (otherwise the Strategic Environmental Assessment Directive or "SEA Directive") into domestic law. NPF2 is an example of such a qualifying plan or programme. The respondents are the responsible authority in relation to NPF2.

[6] Section 12 of the 2005 Act provides that any qualifying plan or programme shall not be adopted before the requirements of Part 2 of the Act (sections 14 to 17) have been met. Section 14 requires the responsible authority to secure the preparation of an environmental report in relation to any qualifying plan or programme which shall identify, describe and evaluate the likely significant effects on the environment of implementing the qualifying plan or programme and the reasonable alternatives to the qualifying plan or programme. Section 16 makes provision for consultation on the qualifying plan or programme and the environmental report. That includes the requirement in section 16(2)(a) that the responsible authority secure publication of a notice containing certain specified information in relation to a qualifying plan or programme. In terms of section 16(4) publication of that notice shall be by such means (including publication in at least one newspaper circulating in the area to which the qualifying plan or programme relates) as will ensure that the contents of the notice are likely to come to the attention of the public affected by or likely to be affected by or having an interest in the qualifying plan or programme. Section 17 requires that in the preparation of a qualifying plan or programme the responsible authority shall take into account, inter alia, the environmental report and every opinion expressed in response to the invitation made in the section 16(2)(a) notice.

[7] The respondents consulted on the scope of NPF2 from October 2007. A discussion draft NPF2 was issued in January 2008 with a consultation period from 8 January until 15 April 2008 (a period of 13 weeks). Accompanying that draft there was issued the National Planning Framework 2 SEA (Strategic Environmental Assessment) Environmental Report January 2008. The draft was revised in the light of responses to the discussion draft and a revised NPF2 was published in December 2008 and thereafter considered by the Scottish Parliament between 12 December 2008 and 6 March 2009.

[8] The discussion draft NPF2 issued in January 2008 did not include the Hunterston project as a proposed national development. The first reference by the respondents to the Hunterston project in a document forming part of the consultation process on NPF2 was in the National Planning Framework 2 SEA (Strategic Environmental Assessment) Supplementary Assessment of the Environmental Effects of Candidate National Developments Environmental Report consultation paper ("the Supplementary Assessment") which was published on the National Planning Framework website on 19 September 2008. This included 52 potential national developments with the Hunterston project listed at number 29.

[9] Because NPF2 and, in particular, its designation of possible developments as national developments, constitute a qualifying plan or programme, the modification of the discussion draft NPF2 by the addition of further candidate national developments through publication of the Supplementary Assessment in September 2008 also constituted a qualifying plan or programme to which Part 2 of the 2005 Act applied.

[10] About the time of the publication of the Supplementary Assessment, two further documents were published on the National Planning Framework website: "NPF2, SEA Guide" and a newsletter. These two documents drew attention to the Supplementary Assessment and requested responses to it by 31 October 2008. The Supplementary Assessment was also advertised by entries in the Edinburgh Gazette on 9 and 23 September 2008. A six-week period was allowed within which to express opinions.

The petition for judicial review: procedural history

[11] By way of amended petition for judicial review the petitioner seeks (a) reduction of NPF2 insofar as it designates a new clean coal fired power station and container transhipment hub at Hunterston as a national development; alternatively (b) reduction of NPF2; and (c) a protective order for expenses. The petitioner's complaint relates to the consultation process leading up to the publication of NPF2 on 25 June 2009. He contends that the designation of the Hunterston project as a national development was unlawful because the statutory requirements for consultation with the public prior to designation, as contained in Part 2 of the 2005 Act, were not complied with. His particular focus is on the Supplementary Assessment and what followed on its publication in September 2008.

[12] First orders in the petition (then at the instance of the present petitioner and one other) were granted on 24 September 2009 with a first hearing being fixed for 18 December 2009. On that day the petition called before Lady  Dorrian when she allowed a minute of amendment for the petitioner to be received and proceedings to be abandoned in respect of the second named petitioner. She also heard parties on the petitioner's application for a protective and restricted expenses order. Lady  Dorrian made avizandum. The petition called by order before Lady  Dorrian on 28 January 2010 when she made a protective expenses order restricting in advance the amount of the respondents' expenses for which the petitioner could be found liable in the event that the petition is unsuccessful to an amount not exceeding £30,000. She also made an order that in the event that the petition is successful, the petitioner's expenses recoverable from the respondents be restricted to the expenses of an agent and one senior counsel acting without a junior. She refused leave to reclaim. She continued the first hearing.

[13] The petition then came before Lord Brailsford for the continued first hearing on 16 November 2010. He heard argument on the substantive question as to whether the requirements for consultation imposed by the SEA Directive and the 2005 Act had been complied with, or at least substantially complied with. He also heard argument on the respondents' two preliminary pleas: that the petitioner had no title to sue and, further, that the petitioner was barred by mora, taciturnity and acquiescence from insisting in the petition. He made avizandum. As he explains in his opinion, [2011] CSOH 163, Lord Brailsford initially delayed issuing a decision on the argument that he had heard, pending determination of the appeal to the Supreme Court in Axa General Insurance Ltd v The Lord Advocate (judgment issued on 12 October 2011 and now reported as 2012 SC (UKSC) 122). However, having waited some time, and having heard parties by order, Lord Brailsford issued his opinion on 4 October 2011, thereby preceding issue of the Supreme Court's judgment by a little over a week.

[14] In terms of that opinion, Lord Brailsford upheld both preliminary pleas for the respondents and dismissed the petition. In doing so he expressed the view that there had been no breach of the requirements of either the 2001 Directive or the 2005 Act.

[15] The petitioner now reclaims the interlocutor of Lord Brailsford of 4 October 2011. He also reclaims against the interlocutor of Lady Dorrian dated 28 January 2010 insofar as setting a cap on his liability for the respondents' expenses at £30,000.

Legislative framework

[16] The following provisions are of relevance:

Town and Country Planning (Scotland) Act 1997

"3A National Planning Framework

(1) There is to be a spatial plan for Scotland to be known as the 'National Planning Framework'.

(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.

(3) The National Planning Framework must contain-

(a) a strategy for Scotland's spatial development, and

(b) a statement of what the Scottish Ministers consider to be priorities for that development.

(4) The framework may-

(a) contain an account of such matters as the Scottish Ministers consider affect, or may come to affect, the development and use of land,

(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 subsection (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.

(6) The Scottish Ministers are to-

(a) prepare and publish the framework, and

(b) keep it under review.

(7) Within 5 years after publishing the framework under subsection (6)(a), the Scottish Ministers are either-

(a) to revise the framework, or

(b) to publish an explanation of why they have decided not to revise it.

(8) If the Scottish Ministers revise the framework, they are to publish it as revised.

(9) Within 5 years after publishing the framework under subsection (8) or an explanation either under paragraph (b) of subsection (7) or under paragraph (b) of this subsection, the Scottish Ministers are either-

(a) to revise the framework, or

(b) to publish an explanation of why they have decided not to revise it.

(10) The Scottish Ministers are to prepare and publish an account (in this Part referred to as their 'participation statement') of when consultation as regards the preparation or review of the framework is likely to take place and with whom and of its likely form and of the steps to be taken to involve the public at large in the preparation or review.

3B Proposals for National Planning Framework: Parliamentary consideration

(1) After complying with section 3A(10), the Scottish Ministers-

(a) are to lay the proposed National Planning Framework (or of the framework as proposed to be revised) before the Scottish Parliament, and

(b) are not to complete their preparation or revision of the framework until the period for Parliamentary consideration has expired.

(2) In this section, the 'period for Parliamentary consideration' means the period of 60 days beginning on the day on which the draft is so laid; and in reckoning that period no account is to be taken of any time during which the Scottish Parliament-

(a) is dissolved, or

(b) is in recess for more than 4 days.

(3) In preparing or revising the framework, the Scottish Ministers are to have regard to any resolution or report of, or of any committee of, the Scottish Parliament made, during the period for Parliamentary consideration, as regards the proposed framework (or as the case may be the framework as proposed to be revised).

3C National Planning Framework to be laid before Parliament

(1) The Scottish Ministers are to lay a copy of the National Planning Framework published, or published as revised, under section 3A before the Scottish Parliament.

(2) Together with any copy laid under subsection (1), the Scottish Ministers are to lay-

(a) a report as to the extent to which their actings with regard to consultation and the involvement of the public at large have conformed with (or have gone beyond the requirements of) their current participation statement, and

(b) a statement giving details of-

(i) any resolution or report falling within subsection (3) of section 3B, and

(ii) the changes (if any) which in the light of any such resolution or report the Scottish Ministers have made to what was laid under subsection (1)(a) of that section."

"8 Preparation of strategic development plan etc.: general

(1) In preparing a strategic development plan or a main issues report the strategic development planning authority-

(a) are to take into account the National Planning Framework, ..."

"25 Status of development plan

(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) of subsection (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' (but this paragraph is without prejudice to the generality of that expression), and

(b) in the event of any incompatibility between the National Planning Framework and the development plan, whichever of them is the later in date is to prevail."

Directive 2001/42/EC (The SEA Directive)

"Article 3...

1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.

...

Article 4...

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

...

Article 5...

1. Where an environmental assessment is required under Article 3(1), 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 into account 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 I.

2. The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.

...

Article 6...

1. The draft plan or programme and the environmental report prepared in accordance with Article 5 shall be made available to the authorities referred to in paragraph 3 of this Article and the public.

2. 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.

3. Member States shall designate the authorities to be consulted which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes.

4. 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, including relevant non‑governmental organisations, such as those promoting environmental protection and other organisations concerned.

5. The detailed arrangements for the information and consultation of the authorities and the public shall be determined by the Member States.

...

ANNEX I...

(a) an outline of the contents, main objectives of the plan or programme and relationship with other relevant plans and programmes;

...

(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; ..."

Environmental Assessment (Scotland) Act 2005

"12 Restriction on adoption or submission

(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.

(2) A plan or programme in respect of which a determination is required under section 8(1) shall not be adopted, or submitted to a legislative procedure for the purpose of its adoption, unless either-

(a) the requirements of subsection (1) have been met; or

(b) the determination under section 8(1) is that the plan or programme is unlikely to have significant environmental effects.

...

14 Preparation of environmental report

(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 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, taking account of-

(a) current knowledge and methods of assessment of environmental matters;

(b) the contents of, and level of detail in, the plan or programme;

(c) the stage of the plan or programme in the decision-making process; and

(d) the extent to which any matters to which the report relates would be more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.

...

16 Consultation procedures

(1) As soon as reasonably practicable, and in any event within 14 days of the preparation of the environmental report, the responsible authority shall-

(a) send a copy of the report and the qualifying plan or programme to which it relates ('the relevant documents') to the consultation authorities; and

(b) invite each consultation authority to express its opinion on the relevant documents within such period as the responsible authority may specify.

(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 at all reasonable times and free of charge; and

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

(3) The periods referred to in subsections (1)(b) and (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.

(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; of

(b) having an interest in,

the plan or programme.

...

17 Account to be taken of environmental report etc.

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

(a) the environmental report for that plan or programme;

(b) every opinion expressed in response to the invitations referred to in section 16(1) and (2)(a)(iii); ..."

Lord Brailsford's decision

[17] Lord Brailsford's dismissal of the petition followed on his upholding the respondents' preliminary pleas of no title to sue; and bar by reason of mora, taciturnity and acquiescence.

[18] As far as the question of no title to sue was concerned, while Lord Brailsford was prepared to regard the petitioner as having sufficient title to sue in order to "prevent a breach by a public body of a duty owed by that public body to the public": cf Wilson v IBA 1979 SC 351, he did not consider the petitioner also to have the interest which was necessary in addition to title. To qualify an interest a person must have "a real and legitimate interest to protect", which must be "some real and practical interest" and not "remote, tenuous, academic or theoretical": Axa General Insurance Ltd v The Lord Advocate (in the Inner House) 2011 SLT 439. Applying that approach, Lord Brailsford concluded that even if the petitioner could be said to have established a title to sue, he did not have an interest to sue. The petitioner did not reside adjacent to the site and was not therefore a neighbour. His use of the site was limited, intermittent and non-essential. It was the type of usage which could in fact be exercised over any area of land to which the public has access at any location in Scotland. He did 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. This was to go too far. It was neither desirable nor necessary that public bodies in the discharge of their duties be subject to challenges by persons, no matter how well intentioned they may be, whose link with a site or subject was as remote as that of the petitioner to the Hunterston site.

[19] While not necessary for his decision, given that he upheld the preliminary pleas, Lord Brailsford provided an indication of his views in relation to the merits of the petition. He noted that parties were agreed that the SEA Directive had been sufficiently transposed into Scots law by the 2005 Act and that therefore the issue came to be whether the respondents had complied with the relevant domestic statutory provisions. No complaint was made by the petitioner with regard to the respondents' performance of their duties until the promulgation of the Supplementary Assessment in September 2008, with its mention for the first time of the Hunterston site. The criticism of what followed related to the type of publicity afforded to the publication of that document and to the periods allowed for consultation. The underlying ethos, as derived from the Directive, was to seek to ensure that members of the public "... be given an early and effective opportunity within appropriate time frames..." in order that they had the opportunity to comment on draft plans and programmes. The details of how this over-riding purpose was to be achieved were set out in section 16 of the Act. In Lord Brailsford's opinion the respondents had complied both with the specific requirements of section 16 and with the underlying ethos derived from the directive. Compliance with the requirements of section 16 was achieved by advertisement in the Edinburgh Gazette newspaper. That had been criticised as a means of notification because that newspaper was not of wide publication and not readily available to or even known by, members of the general public. That was not an argument which Lord Brailsford thought could succeed. The Edinburgh Gazette was the recognised method in Scots law of publishing formal and legal notices. As long as that status remained, advertisement in it should be regarded as a proper means of bringing to the attention of the public matters such as the Supplementary Assessment. Moreover, the Supplementary Assessment had been published on the respondents' website. That was 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 be likely to check periodically for information which might be of interest to them. It was true that there was no formal notice of the Supplementary Assessment published in any local newspaper but while such publication might be an effective means of bringing such matters to the attention of the public, Lord Brailsford did not consider that to be the only means of so doing. More importantly, he did not consider that it was 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 constituted an unnecessarily onerous obligation in circumstances where there were other methods of bringing matters to the public attention.

The grounds of appeal and the extent to which they are in issue

[20] The petitioner presented six grounds of appeal. The first five grounds are directed at Lord Brailsford's interlocutor of 4 October 2011. The sixth ground is directed against the interlocutor of Lady Dorrian dated 28 January 2010. The six grounds may be summarised as follows:

(1) The Lord Ordinary erred in finding that the petitioner did not have title to sue. The Lord Ordinary's approach has been overtaken by the development of the law by the Supreme Court in Axa General Insurance Ltd v The Lord Advocate. As an individual acting in the public interest in relation to issues of general public importance and having a reasonable concern in the matter of the potential development of the Hunterston site, the petitioner has sufficient standing to bring this petition for judicial review.

(2) The Lord Ordinary erred in upholding the respondents' plea of mora, taciturnity and delay.

(3) The Lord Ordinary erred in holding, at least by implication, that the advertisement of the Supplementary Assessment in the Edinburgh Gazette complied with the requirements of section 16 of the 2005 Act, as interpreted in the light of the SEA Directive and the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ("the Aarhus Convention"). Publication in the Edinburgh Gazette did not ensure that the contents of a notice were likely to come to the attention of the public affected by or likely to be affected by or having an interest in NPF2.

(4) Had the Lord Ordinary not (erroneously) upheld the respondents' preliminary pleas, he would have been bound to consider the merits of the petition and, having done so, ought to have found that a six-week consultation period (in response to the Supplementary Assessment) was inadequate in terms of the 2005 Act, particularly having regard to the other weaknesses in the consultation process.

(5) Similarly, had the Lord Ordinary not (erroneously) upheld the respondents' preliminary pleas, he ought to have found that the 2005 Act and the SEA Directive required the Supplementary Assessment properly to evaluate reasonable alternatives, give reasons for selecting alternatives and provide a non-technical summary. The Supplementary Assessment dealt with "alternatives" in name only and not in substance. To the extent alternatives are discussed, they are not discussed in an intelligible way identifying what are true alternatives one to another and the reasons therefor.

(6) The protective expenses order should be reviewed and figure lower than £30,000 set as the cap on the petitioner's liability for the respondents' expenses.

[21] Parties' respective positions were set out prior to the hearing of the reclaiming motion in what were full grounds of appeal, answers to these grounds, and notes of argument, to which I would refer. Counsel for the respondents supplemented what had previously been provided with a further note of argument lodged on the final day of the hearing. Whereas in the answers to the grounds of appeal and the initial note of argument for the respondents, it was maintained that the Lord Ordinary was correct to uphold the plea of mora, taciturnity and acquiescence (with the result that the court heard a submission from the petitioner that the plea should not have been upheld), that position was departed from by counsel for the respondents in the course of his submissions. He accepted (rightly, in our opinion) that in circumstances where the final version of NPF2 was not published until 25 June 2009 - before which time could not reasonably be said to run against the petitioner - the decision of the Lord Ordinary on mora could not be supported. The second ground of appeal was therefore not in issue. Counsel for the respondents explained that he took a neutral position on what the terms of the protective expenses order should be.

[22] In the respondents' answers to the grounds of appeal it was averred (and this was not challenged by the petitioner) that, whereas an application had been made by Ayrshire Power for consent to construct a power station at the Hunterston site under section 36 of the Electricity Act 1989, there was no current application. Ayrshire Power had announced on 26 June 2012 that it was withdrawing its application. Further, the respondents had not sought to limit consideration of that application to issues of siting, design and mitigation. At the pre-inquiry meeting in respect of that application, held on 13 June 2012, the Reporters indicated that they would consider all relevant grounds of objection raised.

Submissions

Petitioner and reclaimer

Introduction

[23] Mr Smith QC on behalf of the petitioner confirmed that in moving the court to allow the reclaiming motion he only sought reduction of NPF2 insofar as it designated a new clean coal fired power station and container transhipment hub at Hunterston as a national development. In addition he sought the petitioner's liability in respect of the respondents' judicial expenses to be capped at no more than £5000. He adopted his written note of argument.

[24] By way of introduction to his grounds of appeal and explanation of the petitioner's interest and the nature of his complaint, Mr Smith turned to consider the effect of designation of the Hunterston project as a national development. As appeared from pages 102 to 103 of NPF2 (Annex: National Developments - Statements of Need), designation of a project as a national development was a mechanism for establishing the need for, for example, electricity generating capacity. Designation will be a material consideration in determination of planning applications and "subsequent examination of the detailed planning implications, whether by a session of a public inquiry or a hearing, will therefore be concerned with matters such as siting, design and the mitigation of environmental impacts, not the principle of development". Admittedly, grant of consent for the construction of generating stations was governed by section 36 of and schedules 8 and 9 of the Electricity Act 1989 rather than section 25 of the Town and Country Planning (Scotland) Act 1997: William Grant & Sons Distillers Ltd v The Scottish Ministers 2013 SCLR at para 17, but while the designation of the Hunterston project as a national development might not have an effect equivalent to a presumption in favour of development, it certainly would be a material consideration in any decision on an application for consent. At best a reporter would therefore have to make a planning judgement as between a government statement and any other opinion but a reporter could adopt the position that designation precluded any evidence whatsoever being led on the principle of development. The National Planning Framework for Scotland 2: Assessment Matrix of Candidate National Developments against the National Development Criteria indicates that a purpose of designation is to establish "locational principles". If designation was nevertheless considered to be in the realms of high-level strategic policy and therefore not justiciable, it was relevant to consider what was said in the context of adequacy of opportunity for public consultation on such an issue in R (Greenpeace) v Secretary of State for Trade and Industry [2007] Env LR 623. There Sullivan J observed, at 644 et seq, that with the accession of the United Kingdom to the Aarhus Convention, whatever may be the position in other policy areas, in the development of policy in the environmental field consultation is no longer a privilege to be granted or withheld at will by the executive, there is an obligation on government to provide opportunities for public participation in the preparation of policy. An argument that matters of high policy were not justiciable had been rejected by Maurice Kay J in R (on the application of Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin). Moreover when consultation is carried out it must be carried out properly, and that requires fairness: R v North and East Devon Health Authority ex p Coughlan [2001] QB 213, R (on the application of Medway Council) v Secretary of State for Transport supra.

[25] Mr Smith drew attention to the European instruments which lay behind the domestic statutory provisions for the preparation of environmental reports, and the requirement to engage in consultation contained in the 2005 Act. A requirement that member states adopt all measures necessary to ensure that before consent was given certain projects, including thermal power stations, were made subject to assessment of their effects on the environment was imposed by Council Directive of 27 June 1985, 85/337/EEC, as amended and then codified as Directive 2011/92/EU of the European Parliament and Council of 13 December 2011 (the Environmental Impact or "EIA Directive"). Article 4(1) of the SEA Directive, (the directive which was intended to be transposed by the 2005 Act and the purpose of which therefore indicated how the 2005 Act should be interpreted) required an environmental assessment to be carried out at an earlier stage, during the preparation of a "plan or programme", as opposed to the later and more specific project stage. The designation of the Hunterston project within NPF2 was such a plan or programme. Article 5(1) of the SEA Directive required that where an environmental assessment is carried out, an environmental report must be prepared in which the significant effects of the plan or programme are identified, described and evaluated. The information for this purpose is referred to in annex 1 to the Directive. That includes an outline of the contents and main objectives of the plan or programme and its relationship with other plans and programmes; the environmental characteristics of areas likely to be significantly affected; and an outline of reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties encountered in compiling the required information. Putting NPF2 in the context of the SEA Directive, the need for additional capacity for the generation of electrical power was one of the objectives of the plan and therefore the Hunterston project was one of the alternatives for meeting that objective, the purpose of considering alternatives in the light of assessment of environmental impact being to find the least worst of the alternatives. In the case of generation of electrical power consideration of alternatives must include considering different ways of doing that, other by a thermal power station. Article 6 of the SEA Directive made provision for consultation. Article 6(1) required that the draft plan or programme, and the environmental report, be made available to the relevant authorities and public. Article 6(2) required that the relevant authorities and the public be given an early and effective opportunity, within appropriate time frames, to express their opinion on the draft plan or programme and accompanying environmental report before adoption of the plan or programme or its submission to the legislative procedure.

[26] Mr Smith emphasised that the Hunterston project only emerged as a candidate for designation as a national development (29 in a list of 52) in the Supplementary Assessment of September 2008. The Supplementary Assessment was an environmental assessment as required by article 4 of the SEA Directive and section 14 of the 2005 Act, albeit that it was not in the form of a parallel document to a draft plan or programme, as envisaged by the legislation. Rather, as was apparent from paragraphs 1.14, 1.17.5, 1.18, 2.83, and appendix 2 item 29, at least in relation to the Hunterston project, there was contained in the one document both a plan or programme (in the sense of the proposal of the Hunterston project with the necessary implied assertion of need) and an environmental assessment of that plan or programme. Nevertheless there arose, in terms of section 16 of the 2005 Act, an obligation on the respondents as the responsible authority to consult with the public on, inter alia, the plan or programme proposing the Hunterston project as a candidate national development. It was to be remembered that article 6(1) of the SEA Directive required the opportunity for consultation to be early and effective. The consultation period allowed was 6 weeks ending on 31 October 2008. The only publicity given to the opportunity to consult was by means of an e-newsletter sent to 7000 subscribers (No. 8 of 2008, which included the information: "Identification of a national development in the final NPF will establish the need for such projects in the national interest.") and notices in the Edinburgh Gazette. There had been a front-page article in the edition of the Largs & Millport Weekly News of 17 September 2008 on the identification of Hunterston as a national development in the planning framework, which noted concerns being raised at a meeting of Fairlie Community Council. However, no notice was published by the respondents in the local newspaper and the local community council was unaware of the right of the public to comment. The petitioner was unaware of his right to participate in what was supposed to be a consultation. He only found out about NPF2 at a public meeting on 27 July 2009. He was not alone in this. He offered to prove that other members of the community, who, like him, would have wished to comment, were equally unaware of what was going on. As appeared from the analysis of the consultation responses to the 52 candidate developments reported in January 2009, there were 26 responses in all, of which four related to the Hunterston project. There was no response from a private individual or community council. Mr Smith submitted that it must be concluded that the supposed consultation had not engaged with the local community. A similar view had been expressed in the 5^th Report of the Local Government and Communities Committee of the Scottish Parliament of 25 February 2009. The petitioner would have wanted to make representations on the impact of the designation of the Hunterston project on bird habitat in the area. He was not formally representing anyone but, nevertheless, he could be seen as someone who represented the wider public which had been disenfranchised by a defective consultation process.

[27] Contrary to what was suggested in the respondents' written note of argument, the petition, and therefore the reclaiming motion were not of purely academic interest. It was accepted that there was no longer a current application for consent under section 36 of the 1989 Act to construct a power station at Hunterston. However, there remained the real possibility of a further application. Moreover, there is the likelihood that statements of policy in NPF2 will be "rolled over" into the succeeding national planning framework, NPF3. While it remains the current planning framework, NPF2 will be taken into account in formulating the local development plan. There is the issue of expenses. Finally, there are legal issues of general application to be resolved, particularly as to the fixing of a financial cap on a party's liability for expenses in a protective expenses order and the adequacy of publication in the Edinburgh Gazette as a means of communicating the right to participate in public consultations of the sort discussed in the petition.

First ground of appeal - title and interest, otherwise standing

[28] Mr Smith submitted that the question of the petitioner's title and interest or, as it now should be referred to, standing, to bring these proceedings fell to be considered in the light of what had been said by the Supreme Court in Axa General Insurance Ltd v The Lord Advocate supra and Walton v The Scottish Ministers 2012 SLT 1211. A party will have standing where the issue is one of public law if he has a reasonable concern in the matter. Here the petitioner qualifies as a resident of Largs who frequents the area of coastline likely to be affected by the implementation of the Hunterston project, in order to pursue his hobby of bird watching. He had objected to the application for consent for a power station under section 36 of the 1989 Act and he would have objected to the proposal for designation of the Hunterston project had he been made aware of it. Although he may not formally represent others, the petitioner spoke for a section of the public who, like him, have been disenfranchised by reason of failures in the consultation process: cf Cumming v Secretary of State for Scotland 1992 SC 463. Mr Smith identified three strands within the recent authorities which he founded upon as supporting his submission that the petitioner had sufficient standing to bring these proceedings. The first strand was that there had been a failure in consultation in what was a matter of public concern. In such a case it was unnecessary that the petitioner qualify a particular private interest. It was sufficient that, with a view to upholding the rule of law, his application brought before the court a breach of duty on the part of a public authority, namely the failure by the respondents to afford him, and others in a similar position, a full opportunity to make representations: cf Walton v The Scottish Ministers supra at paras 87, 90, 92, 93, 103 and 106. The second strand arose from the particular context of environmental protection. If someone in the position of the petitioner was held not to have standing, there would be a question as to how the environmental interest might otherwise be represented: cf Walton v The Scottish Ministers supra at paras 152 and 153. The third strand related to the petitioner's personal interest. By reason of his place of residence, his activities, his particular concerns and his wish to make representations, he must be regarded as directly affected by the decision complained: cf Axa supra at paras 62, 63 and 170.

Third ground of appeal - publication of Supplementary Assessment

[29] The petitioner offered to prove that he and other members of the local community first became aware of NPF2 and its designation of the Hunterston project as a national development only when they attended a public meeting on 27 July 2009. They had not previously heard about any proposal for such a designation. They had not been aware of the notices in the Edinburgh Gazette. Mr Smith submitted that publication of notices in the Edinburgh Gazette did not comply with the requirement of section 16(4) of the 2005 Act that publication of the information specified in section 16(2)(a) of the Act 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 affected by or likely to be affected by or having an interest in the relevant plan or programme. The Edinburgh Gazette did not have a wide publication. It was not readily available or even known about by members of the public. Although this had not been argued before the Lord Ordinary, it was Mr Smith's submission that the Edinburgh Gazette could not be regarded as a newspaper "circulating" in the Hunterston area: cf R v Westminster Betting and Licensing Committee ex p Peabody Donation Fund (Governors) [1963] 2 QB 750. In any event, the planning system required to engage with a passive public, and not just those members of the public who were prepared actively to seek out relevant information. The display of information on a website is part of the process, and is a separate requirement under section 16(2)(c) of the 2005 Act, but of itself it did not alert the public. Mr Smith contrasted the terms of section 16(4) with those of regulation 9 of the Electricity Works (Environmental Impact) (Scotland) Regulations 2000, SSI 2000/320, which required a notice to be published in two successive weeks in the Edinburgh Gazette and one or more newspapers circulating in the locality. That implied that, in the view of the Scottish Ministers, advertisement in the Edinburgh Gazette alone was unlikely to bring a notice to the attention of the public. It was to be borne in mind that the National Planning Framework comprehended national policies as well as local projects. It was therefore relevant to those members of the public who may not have interest in specific issues or specific locations. Mr Smith accepted that if his argument was correct there might need to be quite extensive publication in a variety of newspapers in order to achieve national coverage. At all events, not enough had been done in the present instance. In response to the respondents' contention that method of publication under section 16 of the 2005 Act was a matter for the respondents' discretion, Mr Smith argued that that they must be taken to have made an error of law in considering the Edinburgh Gazette to be a newspaper circulating in the area and were irrational (in the sense of Wednesbury unreasonable) in concluding that the contents of the notices would come to the attention of the relevant public. The petitioner contended that the reason why he was unaware of the possibility of the designation of the Hunterston project in NPF2 was the inadequacy of the consultation process and in particular the inadequacy of the steps taken to bring relevant information to the attention of concerned members of the public such as himself. Had the petitioner been made aware of a proposal to designate the Hunterston project during the consultation process he would have objected.

Fourth ground of appeal - adequacy of consultation period

[30] Mr Smith submitted that a six-week consultation period in response to the Supplementary Assessment, with its 52 candidates as national developments, was inadequate, particularly having regard to the respondents' reliance on publication in the Edinburgh Gazette, and the hope that information would thereafter "trickle out". The period contrasted unfavourably with the 13 weeks allowed for the January 2008 discussion draft of NPF2. Mr Smith adopted the arguments in the petitioner's planning consultants' report (number 56 of process): there had been no attempt to identify the relevant "interested" public and there had been a failure to provide an "early and effective" opportunity for the public to express opinions as required by article 6 of the SEA Directive. Accordingly, there had been a "less than full opportunity" to make representations: cf Cumming v Secretary of State for Scotland supra.

Fifth ground of appeal - adequacy of consultation documents and information on reasonable alternatives

[31] Mr Smith submitted that the recital to and article 5(1) of, read with annex 1, and article 5(2) of the SEA Directive and section 14 of and schedule 3, paragraph 8 to the 2005 Act, required the Supplementary Assessment (or any parallel documents published with it) to evaluate reasonable alternatives, give reasons for selecting alternatives and provide a non-technical summary. This had not happened. Mr Smith identified the following failures: (1) there was no explicit statement in the Supplementary Assessment of the objective of the plan, in other words no statement of need for additional generating capacity and no statement of need specific to the Hunterston project; (2) there was no meaningful identification of reasonable alternatives; (3) there was no meaningful discussion of reasons for the alternatives selected - to the extent alternatives were discussed, they are not discussed in an intelligible way identifying what are true alternatives one to another and the reasons therefor; (4) no updated parallel draft plan was published; and (5) no non-technical summary was provided. Thus, although additional candidates as national developments had been introduced it was difficult to understand what was seen to be the need for these developments or why they had been proposed or what was seen to be their purpose. The 52 candidates might all be regarded as alternatives one to the other but, for example, no alternative site was proposed for power generation. The result was that no intelligent comment was possible: cf R (Greenpeace) v Secretary of State for Trade and Industry supra at paras 49, 52, 55, 58-61; Seaport Investments Limited [2008] Env LR 23 at paras 24, 26, 33, 34, 35 and 56.

Remedy

[32] Mr Smith accepted, under reference to what had been said by Lord Carnwath and Lord Hope at paras 124 to 127, 133, 140 and 155 in Walton, that a finding of failure to comply with the requirements of the SEA Directive and the 2005 Act did not have the necessary consequence that the court was bound to reduce NPF2 or NPF2 insofar as it related to the Hunterston project. The court retained the discretion it had at common law to refuse to give effect to the objection. That said, it was Mr Smith's position that the starting point was that the court should grant a remedy. There had been thousands of objections to the section 36 application which indicated that there was a large well to be tapped. It could not be assumed that the outcome would have been the same had these materially disenfranchised members of the public been allowed to comment on the questions of need and reasonable alternatives. Had he been given the opportunity, the petitioner would have mentioned the birdlife issue and the matter of increased carbon dioxide emissions. This would have added to the weight of the RSPB representations. The Supplementary Assessment acknowledged that the development "could" result in substantial losses of important and partially designated habitats. The petitioner would have put it more strongly than that.

[33] Mr Smith noticed from their note of argument that the respondents relied on their "substantial compliance" with the statutory requirements. This doctrine was derived from a case where the German government had carried out essentially what was required by the Directive but had been guilty of a technical failure. The respondents asserted that in the present case they had made an environmental assessment which was carried out in a transparent manner. That, observed Mr Smith under reference to the report of the Scottish Parliament's Local Government and Communities Committee, was controversial.

Sixth ground of appeal - protective expenses order - review of the interlocutor of 28 January 2010

[34] Mr Smith argued that, in setting the limit for the petitioner's liability in expenses to the respondents at £30,000, Lady Dorrian had selected a figure that was unreasonably high. He proposed £5000 as the appropriate cap on the petitioner's liability. What was in issue was liability in respect of proceedings in the Outer House. Legal Aid had been granted for the proceedings in the Inner House.

[35] The petitioner's solicitor, who had already accrued some £24,000 in uncharged fees, was acting pro bono. The petitioner's means were modest. As Lady  Dorrian had accepted, he had been in receipt of jobseeker's allowance and had savings in the region of £1000. He was in the course of raising funding and seeking pledges to meet the possible liability of £30,000. Lady Dorrian had given no reasons for fixing on the chosen sum. Mr Smith made reference to Morgan and Baker v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, [2009] Env LR 30 for its discussion of the principles underpinning the making of protective costs orders in England and protective expenses orders in Scotland and, in particular, its discussion of the requirement of the Aarhus Convention that contracting states should provide adequate and effective judicial remedies which shall not be prohibitively expensive.

Respondents

A short argument - no practical result

[36] Mr Moynihan QC for the respondents began by adopting his note of argument (except in relation to the plea of mora which was departed from), which controverted each of the petitioner's grounds of appeal, but he explained that the short answer to the reclaiming motion was that allowing the reclaiming motion and reducing NPF2 insofar as it related to the Hunterston project would have no practical result (albeit, equally, little prejudice). The substance of the petitioner's complaint, as developed in argument, related to the adequacy of the consideration by the respondents of the need for additional generating capacity in any future application for consent under section 36 of the Electricity Act 1989. His concern was that designation of the Hunterston project as a national development in NPF2 would preclude any further examination of the question of need. That concern was not soundly based. It failed to take into account the clarification in the law by the decisions in R (on the application of Samuel Smith Old Brewery) v Secretary of State for Energy and Climate Change [2012] EWHC 46 (Admin) and William Grant & Sons Distillers Ltd v The Scottish Ministers supra. The relevant provisions of the 1989 Act provide a self-contained code. Even if the reclaiming motion were refused, in any further application for section 36 consent it would be necessary to address the question of need. There would be a requirement for an environmental impact assessment: see The Electrical Works (Environmental Impact Assessment) (Scotland) Regulations 2000, SSI 2000/320. Council Directive 92/43/EEC of 21 May 1992 (the "Habitats Directive") would apply. Thus, while in terms of section 57(2) of the 1997 Act, on granting consent under section 36 of the 1989 Act, the respondents may direct that planning permission for the development shall be deemed to be granted, this did not mean that the scrutiny which would be required for a planning application would thereby be avoided. Mr Moynihan drew attention to the agenda that had been prepared for the pre-inquiry meeting on 13 June 2012 in relation to the now abandoned application under section 36 for consent for a multi-fuel power station at Hunterston. Among the topics included was need and alternatives, the sub-topics being: the justification for new base-load electricity generating capacity in Scotland, the decision to opt for a multi-fuelled coal/biomass fired power station, the alternative sites considered and discounted, and the reasons for locating the power station at Hunterston. The purpose of the SEA Directive was to ensure that environmental protection issues were not foreclosed by policy decisions at an early stage. It was accepted that electricity generation was an example of a plan or programme to which the provisions of the 2005 Act applied. However, one had to have regard to the project approval stage, in other words the public inquiry into the application for section 36 consent. At that stage the petitioner's concerns in relation to birdlife, need for generating capacity and the appropriateness of the Hunterston site can all be considered. Mr Moynihan accepted that the designation of the Hunterston project as a national development would have some weight as a material consideration in any application for section 36 consent, albeit a diminishing weight over the period until June 2014 when it is anticipated that NPF2 will be superseded by NPF3. However, it would be incorrect to say that there will be no scope for challenging the need for the Hunterston project. Mr Moynihan confirmed that he was in a position to give an undertaking on behalf of the respondents that all the issues remained open for consideration. This was relevant to the exercise of the court's discretion in respect of remedy. Standing had to be tested at the time of presenting the petition but remedy fell to be considered at the date of the court's decision.

First ground of appeal - title and interest, and standing

[37] On title to sue or standing, the law was as stated in Axa and Walton. What these cases left unresolved was the precise distinction as between an interested party and a "mere busybody". Mr Moynihan accepted that the need to preserve the rule of law and to promote good administration were relevant factors. There were three questions to be answered: (1) whether there was an issue of public importance which could not otherwise be addressed, (2) whether the petitioner had sufficient interest in that issue, and (3) whether the grant of a remedy sought in the petition would produce a practical result; albeit that these questions ran into one another. The petitioner retained the opportunity to make representations in the context of any future section 36 application and, in any event, two of the issues mentioned by the petitioner, bird habitat and carbon dioxide emissions, had been expressly reserved in NPF2. Moreover, there was no reason to accept that the petitioner was a representative of a "disenfranchised" section of the general population. The petitioner had concentrated on the proposal to build a power station at Hunterston but the Hunterston project included a proposal to build a container transhipment hub on the site. Permission for that development would require an application to which section 25 of the 1997 Act would apply, rather than section 36 of the 1989 Act. The construction of a transhipment hub would have implications for bird habitat, as is demonstrated by the RSPB response to the Supplementary Assessment. The proposal to build a transhipment hub had been referred to in the first National Planning Framework published in 2004 and in the January 2008 discussion draft of NPF2. There was consideration of Hunterston as a deep-water port in the June 2007 SEA Interim Assessment of Alternatives. Thus, it is not the case that the population of the Hunterston area had no reason to be interested in the NPF process prior to September 2008. There is no reason to suppose that the 7000 subscribers to the e‑newsletter did not include members of the public in the locality. The end of the formal consultation period on 31 October 2008 was not the last chance for the petitioner to make representations. On 12 December 2008 the respondents had issued a newsletter inviting contributions from the public during the 60-day period when the draft NPF2 was being considered by the Scottish Parliament. The proposed NPF2 was considered by the Scottish Parliament's Local Government and Communities Committee on 17 December 2008 and on 14 and 21 January 2009. It was considered by the Scottish Parliament's Economy, Energy and Tourism Committee on 14 January 2009, when evidence was heard from, among others, the RSPB and Friends of the Earth, and by the Transport, Infrastructure and Climate Change Committee on 6 January and 13 March 2009. On 5 March 2009 the proposed NPF2 was debated by the Scottish Parliament in full session. Cumming v Secretary of State for Scotland was distinguishable from the present case. In Cumming the appellant had been misled as to the scope of an application for planning permission by the terms of a published notice. The planning authority did not determine the application and the applicant appealed to the Secretary of State against the deemed refusal. The appellant made no submissions to the reporter. Nevertheless it was held that for the purpose of the appeal to the court the appellant was a person aggrieved in that he had been deprived of the opportunity to make representation to the planning authority. In the present case there was no such division of responsibility. Any representation at any stage in the process would be made to the respondents. The present case was more analogous to Forbes v Aberdeenshire Council [2010] Env LR 627 where the petitioner failed to show that she was affected in any meaningful manner by the relevant grant of planning permission. Further, regard had to be had to the fact that the RSPB, a body of which the petitioner was a member, had made representations on impact on bird habitat and on carbon dioxide emissions.

Third ground of appeal - publication of invitation to consult on Supplementary Assessment

[38] In Mr Moynihan's submission, whether publication in the Edinburgh Gazette satisfied the requirements of section 16(4) of the 2005 raised two questions: (1) did the words "as will ensure that the contents of the notice are likely to come to the attention of the public" apply to the newspaper publication in isolation or to the totality of the "means" deployed to that end? and (2) is the Edinburgh Gazette "a newspaper circulating in the area to which the plan or programme relates"? In answering the first question it was relevant to have regard to article 6 of the SEA Directive. Article 6(2) prescribes the objective as being to give the public an early and effective opportunity to express their opinion before the adoption of a plan but article 6(5) leaves the means whereby this is done to the member states. The petitioner had relied on the Implementation Guidance issued by the European Commission Environmental Directorate-General in relation to the SEA Directive but paragraph 7.16 of the Guidance (which provides commentary on article 6(4) which is the provision requiring member states to identify the interested public) is silent on the matter. Paragraph 7.19, however, encourages "exploring more modern arrangements for consultation such as internet-based discussions, provided that these do not by their nature exclude sections of the public". Mr Moynihan submitted that read in the context of the objective of the Directive, section 16(4) of the 2005 Act was to be construed as imposing a minimum requirement of newspaper publication. The concluding phrase in section 16(4) applied to the totality of means employed and not to newspaper publication in isolation. This was reinforced by practical considerations - no single newspaper was likely to be read by a wide cross-section of the public in one locality, let alone across the country as a whole; a variety of means had to be employed. As to the second question, the Edinburgh Gazette was the national newspaper of record; it was a newspaper circulating in the area to which the plan or programme relates. In looking at section 16 compliance, one had to look at the respondents' wider information strategy including the derivative publicity generated (the "trickle-down effect" which had been acknowledged by Mr Smith). The petitioner's claim that he would have been alerted by a notice in the Largs & Millport Weekly News is speculative; he does not appear to recall the news articles about Hunterston to which the respondents refer. No means of public notification will be universally successful. The fact that the petitioner remained ignorant of the opportunity to comment is not indicative of a failure in compliance. The report of the Local Government and Communities Committee had to be read in context. It is not a comment on the Supplementary SEA but on the NPF drafting process as a whole. It contains a reference to the long-standing difficulty in generating a high level of interest in consultation exercises.

Fourth ground of appeal - adequacy of consultation period

[39] Mr Moynihan submitted that the petitioner had no interest in contending that a six-week consultation period was inadequate in that his complaint is that he only became aware of NPF2 in July 2009, some 9 months after the publication of the Supplementary Assessment. Similarly, he had no interest in arguing that a longer period should have been allowed for consultation on all the 52 candidates for designation. His concern is limited to Hunterston. The decision of the European Court of Justice in Seaport Investments Limited had been relied on by the petitioner but in that case the Court had made no adverse comment on a six-week consultation period.

Fifth ground of appeal - adequacy of consultation documents and reasonable alternatives

[40] Again, it was Mr Moynihan's submission that the petitioner had no interest to advance this argument, given that he averred that he had been unaware of the opportunity to make representations but, apart from that, the petitioner could not point to any prejudice due to lack of documentary material. He was not arguing for an alternative to the Hunterston site as a location for a power station. His complaint was restricted to the issues of bird habitat and carbon dioxide emissions. He was well able to make a response on these issues. In any event, the Supplementary Assessment fully complied with the requirements of article 5 of and annex 1 to the SEA Directive, and section 14 of the 2005 Act. It is to be borne in mind that the objective of the environmental assessment of plans and programmes is to guard against the possibility that details determined at the pre-project stage may escape environmental impact assessment at the project stage: cf Walton v Scottish Ministers supra at paras 12 and 17. Where, as here, the plan is at a high level and leaves the project open to the rigour of a specific environmental impact assessment, there is less need for comprehensive statements. The background was, in any event, simple. The discussion draft referred to the need for additional generating capacity, given that existing power stations are scheduled for closure, and the preference for new stations to be built at the sites of existing stations in order to make use of the existing supporting infrastructure. The Hunterston site was mentioned during consultation and, subject to reservations which include the need for an environmental impact assessment prior to consent, was therefore included in NPF2.

Remedy

[41] Mr Moynihan pointed to the observations of Lords Reed and Carnwath in Walton on the inter-relation between recognising an applicant's interest and reserving a discretion to grant a remedy. The exercise of discretion will be fact‑specific. Given the petitioner's limited practical objective and the undertaking given on behalf of the respondents, there was no need for any part of the NPF2 to be reduced.

Discussion

The first ground of appeal - standing

[42] The petitioner challenges the respondents' designation, within the current National Planning Framework, NPF2, of the Hunterston project as a national development as unlawful, by reason of various suggested failures in the statutory process leading to the relevant designation. The respondents dispute that there have been any material failure in the process but argue that, in any event, the petitioner's complaint that he has been deprived of the opportunity to make representations against the development of a coal-fired power station at the Hunterston site is groundless. They also question his entitlement to make that complaint in these proceedings (otherwise his title and interest or his standing based on sufficient interest).

[43] The adoption of the National Planning Framework represents policy making at a high level. It is an executive function, squarely within the responsibility of the respondents. Section 3A of the 1997 Act requires that there be a National Planning Framework but it is for the respondents to determine what is in it. For example, the respondents may describe a development and designate it a "national development", with such consequences as follow from that, or they may not. Provision is made by section 3B of the 1997 Act that the Scottish Ministers lay the proposed National Planning Framework before the Scottish Parliament, that they are not to complete their preparation or revision of the framework until the period for Parliamentary consideration has expired, and that they are to have regard to any resolution or report of the Parliament or any of its committees. Additionally, provision is made by section 3C of the 1997 Act for the laying the framework before the Parliament once it is completed. Nevertheless, it is the Ministers' document, containing their strategy for spatial development, their priorities for that development, and what else they consider it appropriate to include. That said, it is no more than a planning framework; it has no immediate and direct effect. It is strategic or "upper tier" in its scope. It does not provide consent for any specific development. It is aspirational rather than immediately effective. At least in its precise terms, it is also temporary. The process of revising NPF2 into a framework which will be designated NPF3 has begun. We were advised that that process will be completed by the middle of 2014.

[44] That does not mean that the terms of NPF2 are of no concern to the petitioner. As a bird watcher, he wishes that the environs of the Hunterston site remain as an available habitat for wild birds. That objective will be imperilled by the development of the site, for example by the building of a power station. Designation of the Hunterston project as a national development does not have the effect of permitting the development of a generating station on the site, that requires consent to be granted in terms of section 36 of the Electricity Act 1989, but, as a matter of generality, consent for development proceeds from a process of "tiered decision-making" such as that referred to by the Aarhus Convention Compliance Committee (in a Report dated 4 April 2008 into compliance by Lithuania with its obligations under the Convention, at paragraph 71, cited in paragraph [18] of the opinion of the Extra Division in Walton v Scottish Ministers [2012] CSIH 19). In other words, strategic planning decisions will effectively narrow or reduce the options available to the decision-maker when a later and more specific decision falls to be made. A familiar example is the status of the development plan in relation to an application for planning permission; in terms of section 25(1)(a) of the 1997 Act, when considering the application, regard is to be had to the development plan, and, unless material considerations indicate otherwise, a determination on the application is to be made in accordance with the plan. Similarly, in terms of section 25(1)(b) of the Act, if the proposed development is a national development, determination of the application is to be made in accordance with any statements under section 3A(5) which complies with the criteria set out in section 25(1)(b). Moreover, statements in the National Planning Framework, which are not so specified, are nevertheless to be treated as "material considerations" for the purposes of the determination.

[45] Section 25 of the 1997 Act provides an example of a mechanism whereby strategic planning decisions impact on later more specific decisions but, as Mr Moynihan emphasised and Mr Smith accepted, section 25 does not apply to a proposal to build a power station. As was held by Lord Malcolm in William Grant & Sons Ltd v Scottish Ministers supra at para 17, the relevant provisions of the 1989 Act (taken with section 57 of the 1997 Act) provide a self-contained code for the determination of consent for the construction of generating stations which obviates reference to section 25. That, however, does not displace the petitioner's concern over designation of the Hunterston project. He argues, and Mr Moynihan on behalf of the respondents did not dispute this, that in the event of a renewed application, the fact that the Hunterston project has been designated as a national development, will be a material consideration favouring a grant of section 36 consent. More specifically, given the references in NPF2 and its associated documents to need and to "locational principles", the petitioner fears that designation will preclude any further consideration of need for further generating capacity in Scotland or suitability of Hunterston as the general location of a power station to meet such need. We shall have to return to consider how well-founded are these fears but, assuming them to be well-founded, the petitioner has been able to demonstrate an adverse consequence, specific to his concerns, consequent on the adoption of NPF2.

[46] What the petitioner's concerns are relate to the protection of the coastal environment in the vicinity of Hunterston and, insofar as carbon dioxide emissions are concerned, the protection of the wider environment. As appears from article 1 of the SEA Directive, the objective of the directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes. Central to the achievement of this objective is the preparation of an "environmental assessment" of plans and programmes. The carrying out of an environmental assessment includes the preparation of an environmental report and the carrying out of public consultation. Article 6 of the directive makes particular provision for consultation with the public on draft plans or programmes. It is agreed between the parties that NPF2 is such a plan or programme. It is further agreed that the 2005 Act accurately transposes the SEA Directive into Scots law. Section 14 of the 2005 Act imposes an obligation on the respondents as responsible authority to secure the preparation of an environmental report in relation to any qualifying plan or programme and section 16 imposes an obligation on the respondents to consult on, inter alia, in the case of a national planning framework, the draft framework, and the environmental report which relates to it. The petitioner's complaint is that these obligations were not complied with and, as a result he was deprived of his statutory entitlement to participate in the consultation process and thereby to have his environmental concerns taken into account in the decision-making process. He has been, as Mr Smith put it, "disenfranchised"; he has been deprived of his vote in the sense of an opportunity to make a representation, particular to himself, which statute guarantees. That he is a member of a voluntary association, the RSPB, that has made representations, does not alter that. We have yet to look at the substance of these complaints but, assuming them for the moment to be well-founded, in considering the pursuer's standing regard must, in our opinion, be had to the statutory promise to him, as a member of the public, that he would be entitled to participate in a process designed to protect, inter alia, a specific environment that he wishes to be protected. While this may go to justiciability or title, whereas Axa and Walton point clearly to standing being about sufficiency of interest, the petitioner here is able to aver that statute imposed an obligation on the respondents to give him an opportunity which he would have taken up had he been aware of it. There is a public interest in ensuring that statutory obligations owed to members of the public are fulfilled. There is a public interest in protecting the environment. These are different sorts of interests, the maintenance of the rule of law, on the one hand, and the preservation of the physical environment, on the other but, as the opinions of Lords Reed and Carnwath in Walton at paras 90, 93 and 103 illustrate, both are relevant to the question of standing and the fact that as matters of public interest the petitioner shares them with a large number of other residents of the Hunterston area and beyond does not mean that the petitioner cannot rely on them as giving him, as an individual, standing to complain when these interests have been adversely affected. As Lord Reed observes in Walton at paras 90 and 94, the function of the supervisory jurisdiction is not limited to redressing purely individual grievances; the rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no one were able to bring proceedings to challenge it. The petitioner may not be representing the general public in a strict sense but as an individual member of the public he is entitled to rely on his objective of protecting the interest of the general public as a basis for bringing proceedings.

[47] That the petitioner, in bringing these proceedings, is concerned to protect a specific part of the environment, and in particular a wildlife habitat, allows him to rely on the consideration focused by Lord Hope in para 152 of Walton. There Lord Hope is concerned to explain that it is not necessary for a party to demonstrate potential impact on his private interests before he has standing to challenge a decision on environmental grounds. Lord Hope instances the case where there is a risk that a route used by an osprey as it moves to and from a favourite fishing loch will be impeded by the proposed erection across it of a cluster of wind turbines. He continues:

"Does the fact that this proposal cannot reasonably be said to affect any individual's property rights or interests mean that it is not open to an individual to challenge the proposed development on this ground? That would seem to be contrary to the purpose of environmental law, which proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone. The osprey has no means of taking that step on its own behalf, any more than any other wild creature. If its interests are to be protected someone has to be allowed to speak up on its behalf."

[48] In saying what he does in the above passage Lord Hope does not mean that anyone, irrespective of his personal circumstances, will be found to have standing if goes to court on behalf of the osprey. At para 153, Lord Hope explains:

"Of course, this must not be seen as an invitation to the busybody to question the validity of a scheme or order under the statute just because he objects to the scheme of the development. Individuals who wish to do this on environmental grounds will have to demonstrate that they have a genuine interest in the aspects of the environment that they seek to protect, and that they have sufficient knowledge of the subject to qualify them to act in the public interest in what is, in essence, a representative capacity. There is, after all, no shortage of well-informed bodies that are equipped to raise issues of this kind, such as the Scottish Wildlife Trust and Scottish Natural Heritage in their capacity as the Scottish Ministers' statutory advisers on nature conservation. It would normally be to bodies of that kind that one would look if there were good grounds for objection. But it is well known they do not have the resources to object to every development that might have adverse consequences for the environment. So there has to be some room for individuals who are sufficiently concerned, and sufficiently well informed, to do this too. It will be for the court to judge in each case whether these requirements are satisfied."

As appears from Lord Reed's opinion in Walton at para 83, the "mere busybody who is interfering in things which do not concern him" is a person who featured in the advice of the Judicial Committee of the Privy Council, delivered by Lord Denning in Attorney-General of the Gambia v N'Jie [1961] AC 617 at 634. We consider that there was force in Mr Moynihan's observation that what is left unresolved in Axa and Walton is exactly how one should go about distinguishing between this person and the individual who has the genuine interest sufficient to be accorded standing to invoke the supervisory jurisdiction to challenge a decision with environmental consequences which do not impact on that individual's private interest. All that can be said so far, it seems, is that the question is fact-sensitive and will depend on the circumstances of the challenge under consideration. We have yet to consider the specifics of the petitioner's challenge but applying the approach now desiderated by the Supreme Court, it may not be permissible to dismiss it as that of a mere busybody. He lives in an area which he has good reason to believe may be affected by a specific sort of development which will have an adverse impact on a specific coastal environment, about which he avers he is knowledgeable and in which he pursues a specific leisure activity which is of importance to him, as it is of importance to many others. He wished to make representations on the very matter which would have been relevant to the environmental assessment which the respondents were obliged, by both domestic and European law, to carry out. Accordingly, at least at this stage of the examination of the question, it appears that it can be said that the petitioner has standing to bring these proceedings. That, however, does not determine matters since it is first necessary to consider the merits of the petitioner's complaints and then turn to Mr Moynihan's contention that the petitioner's position has not in fact been prejudiced in the circumstances , to date, and that accordingly this application is essentially premature and unnecessary.

Third ground of appeal - publication of invitation to consult on the Supplementary Assessment

[49] We have previously noted that parties were agreed that NPF2 is a qualifying plan or programme. At statement 14 of the petition, referring to the modification effected by publication of the Supplementary Assessment, it is averred that "the NPF2 with regard to Hunterston was a qualifying plan or programme to which the 2001 Directive and the 2005 Act apply." That averment is admitted. Thus parties are accordingly agreed that the modification which introduced, inter alia, the Hunterston project, as a candidate national development, triggered the requirement for an environmental assessment (including preparation of a report, publication and consultation) set out in the SEA Directive.

[50] Given the acceptance by counsel for both parties that the SEA Directive had been fully transposed into domestic law by the 2005 Act, the petitioner's third ground of appeal depends on the proposition that the respondents failed to comply with the publication of notice requirements specified in section 16(4) of the Act (there being no complaint as to compliance with the separate requirement imposed by section 16(2)(c) to display a copy of the relevant documents on the authority's website) albeit that counsel further accepted that if a question arises as to the interpretation of the 2005 Act, it is appropriate to have regard to the terms of the directive in determining how the statute should be construed. Subsection (4) is in these terms:

"(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."

[51] Agreeing with Mr Moynihan, we consider that the grammatical meaning of subsection (4) is that the words: "as will ensure that the contents of the notice are likely to come to the attention of the public" qualify "means", rather than "newspaper". Accordingly, publication in the Edinburgh Gazette can be regarded as satisfying the newspaper publication requirement provided that the Edinburgh Gazette is "a newspaper circulating in the area to which the plan or programme relates". In our opinion there can be no issue about that. As Lord Brailsford observed, the Edinburgh Gazette is the national newspaper of record. Its function is to disseminate official, regulatory and legal information. NPF2 is a national plan or programme. Even if "circulating in the area" means circulating in the various particular local areas directly affected by the various elements within the plan no other publication, as far as we are aware, has that function. It is a publication of long and official standing, designed to perform that function. NPF2, for example the vicinity of Hunterston. We consider that the Edinburgh Gazette meets the statutory criterion because it is a national, rather than local, newspaper. The court was advised that it is possible to access the Edinburgh Gazette on the internet anywhere in Scotland without payment. Thus anyone wishing to read the Edinburgh Gazette can readily do so. It is true that newspaper publication is not the only means contemplated by section 16(4) but while article 6(2) of the SEA Directive prescribes the objective of publication as being to give the public an early and effective opportunity to express their opinion before the adoption of a plan, article 6(5) leaves the means whereby this is done to be determined by the member states. Mr Moynihan did not dispute that the effect of section 16(4) was to impose a notice requirement specific to the Supplementary Assessment, but what was very clear from the expositions provided both by him and Mr Smith, was that a great deal of information about the evolving NPF2 was put into circulation in a variety of ways. Mr Moynihan pointed to the facts that the proposal to build a transhipment hub had been referred to in the first National Planning Framework published in 2004 and in the January 2008 discussion draft of NPF2 and that there was consideration of Hunterston as a deep-water port in the June 2007 SEA Interim Assessment of Alternatives. The Hunterston project did not, as Mr Moynihan put it, "come out of the blue" in September 2008. That the petitioner avers that he and others were unaware of it cannot be determinative of the issue of the sufficiency of notice. In these circumstances and where, as here, determination of the means which will ensure that the contents of the notice are likely to come to the attention of those members of the public as are affected by or likely to be affected by or have an interest in a plan or programme, are a matter for the respondents, we consider that the court should be very slow to substitute its own view, on what is a matter of administration, for that of the responsible authority. We are accordingly unable to conclude that the respondents failed to comply with the relevant statutory requirements for publication of the Supplementary Assessment.

Fourth ground of appeal - adequacy of consultation period

[52] In addition to his more general submissions on standing, Mr Moynihan initially challenged the petitioner's interest to advance both his fourth and fifth grounds of appeal in that given he had been unaware of the invitation to consult on the Supplementary Assessment until some 9 months after publication of the draft (which is a component of his third ground of appeal), he cannot claim to have been adversely affected either by the alleged shortness of the consultation period allowed by the respondents or the alleged inadequacy of the material on which to consult. In the course of the debate, however, he appeared to us to depart from the suggestion that the petitioner could not also (at least on an "in any event" basis) raise concerns as to these matters in addition to his primary concern as to the means of publication.

[53] In any event there are other reasons for not supporting the petitioner's fourth ground of appeal. In Department of the Environment for Northern Ireland v Seaport (NI) Ltd supra at para 48 the European Court of Justice said this about article 6(2) of the SEA Directive:

"... art. 6(2) of the directive does not preclude national legislation transposing that provision from requiring an authority envisaging the adoption of a plan or programme likely to have significant effects on the environment to lay down, itself, the period allowed for the consultation authority and relevant public to express their opinions on the relevant documents, provided that, as seems to be the case in the main proceedings, the period actually laid down for each consultation is such as to give them an early and effective opportunity to do so."

Mr Smith naturally emphasised the proviso that the period laid down should be sufficient to give the relevant public an early and effective opportunity to express their opinions. He submitted that the Court of Justice was endorsing a requirement of sufficiency of the consultation period, as determined objectively. We do not, however, accept that this court has any wide power to interfere with the relevant authority's assessment of what constitutes an adequate period for such purposes. It is true that in R v North and East Devon Health Authority ex p Coughlan supra the court was prepared to consider the adequacy of a consultation period (the Court of Appeal held it to be adequate) but such review can only be by reference to Wednesbury principles. The Court in Seaport made no adverse comment on the Advocate General's observation (at para AG 48) that the responsible authority is best placed to determine the time frame. In any event, the period allowed here was six weeks. In administrative matters, like the present, it cannot be said that that was obviously inadequate. Indeed, although there seems to have been some confusion in Seaport as to what period had in fact been allowed in that case, whether it was 8 weeks as the Advocate General thought or 6 weeks as the Court thought (cf para AG15 and para 20), Mr Moynihan was entitled to point to the judgment of the Court as impliedly supporting the reasonableness of a six-week period. Moreover, as Mr Moynihan argued, regard has to be had to the overall context. The statutory period for public consultation was followed by the process of parliamentary consideration described at paragraph 35 above which gave further opportunities for participation.

Fifth ground of appeal - adequacy of consultation documents and reasonable alternatives

[54] With the publication of the Supplementary Assessment, it became incumbent upon the respondents as responsible authority to carry out an environmental assessment of what the petitioner describes at statement 14 of the petition as "the NPF2 with regard to Hunterston". Article 5(1) of the SEA Directive provides that where an environmental assessment is carried out, an environmental report shall be prepared in which the significant effects of the plan or programme are identified, described and evaluated. The information for this purpose is referred to in annex 1 to the Directive. That includes an outline of the contents and main objectives of the plan or programme and its relationship with other plans and programmes; the environmental characteristics of areas likely to be significantly affected; and an outline of reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties encountered in compiling the required information. Equivalent requirements appear in section 14 of and schedule 3 to the 2005 Act. It may be that there was some force in Mr Smith's submission that the Supplementary Assessment, even when taken together with earlier published material, did not simply, on the face of things, adequately meet these requirements. But the matter has to be addressed in context. NPF2 and, in particular the designation of national developments, fall at the more general, or higher or upper tier end of the spectrum of qualifying plans and programme. As Mr Moynihan submitted, under reference to Walton v Scottish Ministers supra at paras 12, 14 and 17, the objective of the environmental assessment of plans and programmes is to guard against the possibility that details determined at the "upstream" or pre-project stage may escape environmental impact assessment at the "downstream" or project stage. Where, as with the designation of a national development under NPF2, the plan is at a high level and leaves the project open to the full rigour of a specific environmental impact assessment as and when it is proposed to proceed with the project, there would, it seems to us, be less need for a comprehensive environmental report. There is no very obvious purpose in investing resources in carrying out detailed assessments of what are no more than proposals which may never get to the project stage and which, if they do, will in any event then be subject to an environmental impact assessment which must comply with the EIA Directive. In the particular context and circumstances we, accordingly, are of the view that the petitioner's complaint, under this heading, is , at best, technical rather than material.

Discretion and the decision as to whether to grant a remedy

[55] It is not disputed that, in the event of finding that "NPF2 with regard to Hunterston" had been adopted unlawfully, in the sense of being adopted notwithstanding a failure to comply with the requirements of Part 2 of the 2005 Act, it would be competent for this court to reduce NPF2 in part with a view to excising designation of the Hunterston project as a national development: cf Uprichard v Scottish Ministers 2012 SC 172 and Tesco Stores v Aberdeen City Council [2012] CSIH 81. Neither is it disputed that such a finding does not oblige the court to grant the remedy sought. Even where there has been breach of a requirement derived from a European directive and intended as a means of environmental protection, the court, in exercising its supervisory jurisdiction, having considered the merits and assessed where the balance is to be struck, retains its common law discretion to refuse to grant a remedy: Walton v Scottish Ministers supra, Lord Hope (agreeing with Lord Carnwath at para 103 et seq) at para 155. Lord Carnwath put it this way in Walton supra at para 139:

"Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source."

[56] A variety of circumstances may bear on an exercise of discretion but the focus in the present case is on the degree of actual prejudice suffered by the petitioner. He claims to have been "disenfranchised" by a flawed consultation process with the result that he has lost the opportunity to put forward his environmental objections to development of the Hunterston site as a coal-fired power station. What has been put forward on behalf of the respondents is that this is just not so. The court was advised by Mr Moynihan that he had express instructions to give an undertaking on behalf of the respondents that in the event of a further application for section 36 consent during the currency of NPF2, all the issues which were of concern to the petitioner, these being the need for further generating capacity and the suitability of the Hunterston site for development, having regard to the importance of the coastal wildlife habitat, would be open for consideration by the reporter appointed to conduct the relevant inquiry. There would of necessity be a full environmental impact assessment and the petitioner would have an opportunity to comment on that, as he would have the opportunity to participate in the inquiry with a view to him making the points he avers that he would have made in the consultation on the Supplementary Assessment. There was no question of the respondents contending that the moment for doing so had passed forever.

[57] In our opinion, the undertaking which Mr Moynihan gave on behalf of the respondents is of crucial importance and is reflective, in any event, of the legal position. It not only goes to the question of how substantial have been any flaws in the consultation process but it goes to the question of the petitioner's interest in the matter about which he is complaining and that, in turn, goes to whether the court should grant a remedy. As Lord Reed explains in Walton at para 95:

"... the interest of the particular applicant is not merely a threshold issue, which ceases to be material once the requirement of standing has been satisfied: it may also bear upon the court's exercise of its discretion as to the remedy, if any, which it should grant in the event that the challenge is well founded."

Mr Moynihan conceded on behalf of the respondents that the designation of the Hunterston project as a national development would be a material consideration in any decision on an application for section 36 consent prior to NPF2 being superseded by NPF3. But the petitioner cannot claim to be "disenfranchised" when he is guaranteed the opportunity to put precisely the same objections, informed by a full environmental assessment, to an inquiry considering a section 36 application under the 1989 Act, as he would have put as part of a section 16 consultation under the 2005 Act.

[58] As we have already mentioned, the fact that any consideration within the relevant period of a proposal to build a power station at the Hunterston site will require a full environmental impact assessment and that the issues of need and location will be addressed as open questions severely diminish the significance of any alleged failures in the statutory consultation process; if there have been failures they have not been failures with substantial consequences.

[59] While it is true that Mr Moynihan did not point to any prejudice that might arise if NPF2 was partially reduced by excising the designation of the Hunterston project, nevertheless it does not appear to us that setting aside even part of a national planning framework is something that should be done lightly. In the present case we are satisfied that there is no basis for doing so since, for the reasons given, the reclaimer has not demonstrated any proper basis for doing so.

Sixth ground of appeal - the cap on liability under the protective expenses order

[60] Provision for the making of protective expenses orders in appeals and applications for judicial review containing a challenge to a decision, act or omission to which the public participation provisions of what is now Directive 2011/92/EU of the European Parliament and Council, has now been enacted, through the introduction of a new chapter 58A of the Rules of the Court of Session, by the Act of Sederunt (Rules of the Court of Session Amendment) (Protective Expenses Orders in Environmental Appeals and Judicial Reviews) 2013. The Act of Sederunt, and therefore the new chapter of the Rules, came into effect on 25 March 2013, that is after argument in this reclaiming motion and, obviously, after Lady Dorrian's interlocutor of 28 January 2010 making a protective expenses order restricting in advance the amount of the respondents' expenses for which the petitioner could be found liable in the event that the petition is unsuccessful to an amount not exceeding £30,000. Thus, while there is now specific provision in RCS 58A for the making of a protective expenses order in a case such as the present, that was not so when the relevant application was made to Lady Dorrian. It was not suggested, however, that the application in the present case was incompetent; indeed it was conceded that it was competent. In making the order Lady Dorrian was, apparently exercising the wide common law discretion that the court enjoys in relation to expenses rather than any more specific power.

[61] Mr Smith pointed to the fact that Lady Dorrian had given no reasons for selecting a cap of £30,000 on the reclaimer's liability for the respondents' expenses. He argued that, in setting that limit Lady Dorrian had selected a figure that was unreasonably high. The effect of the order was to impose a prohibitive expense for which the reclaimer had to make provision prior to funding his own legal costs.

[62] While it is the case that where a protective expenses order is made in terms of the new chapter 58A of the Rules of Court, RCS 58A.4 provides that any order made must contain provision limiting the applicant's liability in expenses to the respondent to the sum of £5000, it does not follow that a protective expenses order fixing a higher cap on liability is to be regarded as unreasonable. In the present case the regime introduced by chapter 58A did not apply. The Lord Ordinary was exercising a very wide discretion in the knowledge of the likely costs of litigation. While it is true that she gave no reasons for the particular figure selected, the decision that she was called on to make is not one which is capable of much in the way of elaboration. Importantly, the reclaimer has not been denied the opportunity to bring his challenge, albeit that that, is, we were told, in part due to the generosity of the solicitor acting for him. He has been able to attract funding. He has been represented by senior counsel. It is evident from the reclaimer's continued participation that it cannot be said that the effect of the order has been to render the proceedings prohibitively expensive for him. In all the circumstances we have been unable to identify any good reason for interfering with the Lord Ordinary's exercise of discretion in that matter.

Conclusion

[64] We would refuse this reclaiming motion.