PETITION FOR JUDICIAL REVIEW BY THE OPEN SEAS TRUST AGAINST THE SCOTTISH MINISTERS [2024] ScotCS CSIH_9 (25 April 2024)

PETITION FOR JUDICIAL REVIEW BY THE OPEN SEAS TRUST AGAINST THE SCOTTISH MINISTERS [2024] ScotCS CSIH_9 (25 April 2024)

Section 15 of the Marine (Scotland) Act 2010 imposes a statutory duty on Scottish Ministers to consider and act in accordance with the National Marine Plan when making authorisation decisions such as licence variations. Failure to consider the Plan renders the decision unlawful, regardless of broader compliance schemes. The Ministers' approach of relying on statutory instruments without considering the Plan for individual decisions does not satisfy the statutory requirement.

Citation
[2024] ScotCS CSIH_9
Parties
Petitioner and Respondent: The Open Seas Trust; Respondent and Reclaimer: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
25 April 2024
Procedural Posture
Judicial Review / Reclaiming Motion (appeal) From Lord Ordinary's Decision
Outcome
Petition sustained; variation notice declared unlawful for failure to comply with National Marine Plan.
Legal Topics
Statutory Interpretation, Marine Licensing, National Marine Plan Compliance, Fisheries Management, Protected Marine Features
Administrative Law Environmental Law Public Law Statutory Interpretation Marine Licensing National Marine Plan Compliance Fisheries Management Protected Marine Features

Case Brief

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Parties

The Open Seas Trust

Petitioner and Respondent

The Scottish Ministers

Respondent and Reclaimer

Procedural Posture

Judicial Review / Reclaiming Motion (appeal) From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether section 15 of the Marine (Scotland) Act 2010 requires Scottish Ministers to consider the National Marine Plan when varying fishing licences
  2. 2 Whether the Ministers' failure to consider the National Marine Plan renders the licence variation unlawful

Ratio Decidendi

Section 15 of the Marine (Scotland) Act 2010 imposes a statutory duty on Scottish Ministers to consider and act in accordance with the National Marine Plan when making authorisation decisions such as licence variations. Failure to consider the Plan renders the decision unlawful, regardless of broader compliance schemes. The Ministers' approach of relying on statutory instruments without considering the Plan for individual decisions does not satisfy the statutory requirement.

Court Disposition

Petition sustained; variation notice declared unlawful for failure to comply with National Marine Plan.

Orders

  • Declarator that the notice of variation was unlawful as it was not taken in accordance with the National Marine Plan.
  • Petitioners' third plea-in-law sustained to the extent of finding and declaring the notice unlawful.