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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 50
P1082/23
OPINION OF LORD SANDISON
In the Petition of
CAINS TRUSTEES (JERSEY) LIMITED and CAINS FIDUCIARIES (JERSEY) LIMITED as
TRUSTEES for the EASTGATE UNIT TRUST
Petitioners
for
Judicial review of decisions of the Highland Council taken on 28 August and
14 September 2023
Petitioners: Burnett KC, A. Sutherland, Sol Adv; Burness Paull LLP
Respondent: Crawford KC, Colquhoun; Harper Macleod LLP
16 May 2024
Introduction
[1]
In this petition for judicial review, the petitioners challenge the validity of decisions
of the Highland Council to progress with proposals to redesign Academy Street, Inverness,
aimed at greatly restricting vehicular traffic on the street. The hearing which took place
before me was to determine whether that challenge was either incompetent or premature.
2
Background
[2]
The petitioners are the trustees for the Eastgate Unit Trust, which owns the Eastgate
Shopping Centre, Inverness. The centre is located at the east end of Academy Street there.
The respondent is the Highland Council. On 28 August 2023 its City of Inverness Area
Committee decided and resolved that officers should proceed to finalise a proposed design
for Academy Street and consult on a relative Traffic Regulation Order. That decision was
affirmed by a meeting of the full council on 14 September 2023.
[3]
The petitioners claim that a non-statutory consultation exercise had been launched in
May 2022 on a design proposal which did not indicate that there was any intention severely
to restrict the use of Academy Street as a through route for private vehicles. Various
consultation events were held. On 14 November 2022 another design proposal was put
forward in a report to committee of the respondent's Executive Chief Officer for
Infrastructure, Environment & Economy. That proposal involved a restriction of motorised
vehicular access to and through Academy Street, and on 24 November 2022 the Area
Committee resolved that officers should proceed with development of that design. The
decisions of 28 August and 14 September 2023 which are challenged are said to concern a
variant of that fresh proposal. The petitioners challenge the validity of the 2023 decisions on
the basis that there was a failure to carry out proper consultation, that there was a failure to
have regard to material considerations, that an internal report misled the Area Committee
and in turn the full council in relation to the 2023 decisions on a material issue, and that the
respondent's decisions were predetermined and pursue an improper purpose. Those are
not issues that fall for decision at this stage of the proceedings.
[4]
The respondent maintains that the decision challenged by the petition is not
amenable to judicial review. It points out that, in terms of the Road Traffic Regulation
3
Act 1984, the appropriate mode of challenge to a Traffic Regulation Order ("TRO") is a
statutory appeal to the Inner House of this court, and that a TRO may not be challenged,
before or after it is made, except in accordance with the provisions of the 1984 Act. The
decision to proceed with the proposal under consideration was, it claims, one to commence
the process for making a TRO, in accordance with Part II of the Local Authorities' Traffic
Orders (Procedure) (Scotland) Regulations 1999, and the petition amounts to an attempt to
challenge the TRO which the respondent may ultimately make, which it says is incompetent
by way of a petition for judicial review. It further maintains that, in any event, no TRO
having yet been made, the petition is premature. It argues that the consultation exercise
which took place was part of an iterative process of design development, and that formal
consultation, against the background of traffic and economic impact assessments, will be
carried out under statute as part of the ultimate TRO process.
Relevant provisions
[5]
The Road Traffic Regulation Act 1984 provides as follows:
"1.-- Traffic regulation orders outside Greater London.
(1) The traffic authority for a road outside Greater London may make an
order under this section (referred to in this Act as a 'traffic regulation order') in
respect of the road where it appears to the authority making the order that it
is expedient to make it--
[for various specified reasons]
2.-- What a traffic regulation order may provide.
(1) A traffic regulation order may make any provision prohibiting, restricting
or regulating the use of a road, or of any part of the width of a road, by
vehicular traffic, or by vehicular traffic of any class specified in the order ...
...
4
Schedule 9
35.
If any person desires to question the validity of, or of any provision contained in, an
order to which this Part of this Schedule applies, on the grounds--
(a) that it is not within the relevant powers, or
(b) that any of the relevant requirements has not been complied with in
relation to the order,
he may, within 6 weeks from the date on which the order is made, make an
application for the purpose to the High Court or, in Scotland, to the Court of Session.
...
37.
Except as provided by this Part of this Schedule, an order to which this Part of this
Schedule applies shall not, either before or after it has been made, be questioned in
any legal proceedings whatever."
Respondent's submissions
[6]
On behalf of the respondent, senior counsel submitted that, in preparing for the
formal process for the imposition of a TRO on Academy Street in terms of section 1 of
1984 Act, the respondent had chosen to conduct a public consultation and engagement (or
"optioneering") exercise in order to enable the identification of a single TRO proposal upon
which a formal statutory process (including a mandatory consultation) would then take
place. It was against the outcome of that exercise that the petitioners had brought this
challenge. Reference was made to various reports and minutes leading up to and including
the decision complained of.
[7]
The petitioners had failed to understand the various aspects of the process
undertaken by the respondent in considering whether to make a TRO for Academy Street.
Optioneering was not a process which led directly to a real-world outcome, but was simply
an administrative step engaged in by the respondent when consideration was being given to
the formulation of a TRO. The fact that the respondent had decided in 2023 to proceed to
5
develop and progress the current proposal did not in itself make any changes to traffic
regulations on Academy Street, and did not render the eventual adoption of the proposal
within a TRO inevitable. The petitioners had challenged an intermediate step in an overall
procedure, which rendered the entire challenge premature. Moreover, the availability of
statutory appeal of any TRO which might ultimately be made by the respondent rendered
the petition incompetent.
[8]
The respondent was the traffic authority for Inverness for the purposes of the Road
Traffic Regulation Act 1984. Sections 1 and 2 of the 1984 Act set out its power to make
TROs, and the relevant general duty imposed on traffic authorities was set out in section 122
of the Act.
[9]
The Act delegated authority to the Secretary of State and to the Scottish Ministers to
make regulations for the procedure to be followed in making a TRO, and the current
procedure was governed by the Local Authorities' Traffic Orders (Procedure) (Scotland)
Regulations 1999 (SI 1999/614). In brief, that procedure was follows: First, the local
authority had to engage with statutory consultees. Depending on the proposal, the list of
statutory consultees would vary, but would always include Police Scotland, the Scottish Fire
and Rescue Service, the Freight Transport Association, and the Road Haulage Association.
Next, there had to be publication of the proposals in at least one local newspaper (along with
appropriate other methods), and documents related to the proposal had to be made
available for inspection by the general public. Objections to the proposal could be made in
writing by any person, within a period of at least 21 days from publication of the proposal.
Such objections had to state reasons, but might otherwise take any form. The local authority
was required, in considering whether to make the contemplated TRO, to consider all
objections made to the proposal and in certain circumstances had to hold a public hearing.
6
Having considered any objections made, it would be open to the authority either (a) to make
the TRO as proposed, (b) to make the TRO subject to appropriate modifications, (c) to
re-start the TRO consultation process with a modified proposal, or (d) to decline to make the
proposed TRO. Where an objection had been made to the proposed order, the TRO would
be considered by councillors, rather than by an officer of the council.
[10]
In order to begin the TRO process, a local authority firstly had to have a draft TRO
prepared on which to consult. It was not possible to run the TRO process with more than
one proposal at a time, although members of the public might suggest alternative schemes
when submitting objections to a proposal. It was fundamental to the statutory and
regulatory scheme that a single proposal was published, consulted upon, and then
considered by the local authority. The respondents decided in the present case to undertake
a pre-TRO consultative process by way of optioneering. The intention was to seek public
engagement in preparing a draft TRO for submission to more formal public consultation in
accordance with the 1999 Regulations. Optioneering was intended to be an iterative process,
whereby an initial proposal would be changed or replaced in the light of ongoing public
responses: the eventual outcome could then be fed into a statutory consultation for a
proposed TRO. Optioneering, whilst non-statutory, formed an integral part of the
respondent's overall TRO process.
[11]
The 1984 Act provided that challenges to TROs made under section 1 of the 1984 Act
might be challenged by statutory appeal within 6 weeks of the date when the order was
made to the Court of Session, and not otherwise. The decision dated 14 September 2023
challenged by the petitioner was a decision to "proceed with finalising the proposed design
and consult on a Traffic Regulation Order". That was a decision to commence the statutory
TRO process, in terms of the 1999 Regulations. A challenge to a decision to begin the TRO
7
process was a challenge to a TRO "before it has been made". The intention of the provision
was clearly to prevent the premature challenge of a TRO before it had been adopted by the
relevant traffic authority, and the present petition fell squarely within that prohibition.
Accordingly, it was incompetent.
[12]
In any event, it was well-established that the availability of an alternative route of
appeal was an absolute bar to challenge by way of judicial review: see, in the particular
context of the 1984 Act: Strathclyde Buses Limited v Strathclyde Regional Council 1994 SLT 724.
Even if the statute did not explicitly prohibit the bringing of a challenge to a TRO by way of
judicial review, it would be incompetent to seek to do so. If a TRO were ultimately to be
adopted by the respondent, it would be open to the petitioners to challenge it by way of
statutory appeal. If they did so, it would be open to them to seek interim suspension of the
TRO, to prevent it coming into effect whilst the appeal was in dependence. The petitioners
would not lose the benefit of any of the grounds of challenge stated in the petition by having
to wait to bring their challenge by way of statutory appeal in due course.
[13]
The question in law was whether the decision challenged was an antecedent step,
separate and distinct from any eventual decision to put in place a TRO under the 1984 Act.
If so, then the decision was not part of the TRO process and could legitimately be challenged
by way of judicial review. Reference was made in this connection to R v Cornwall County
Council, ex parte Huntington [1994] 1 All ER 694, per Simon Brown LJ (Sir Stephen Brown P
and Peter Gibson LJ concurring) at 700 - 701, and to The Manydown Company Ltd v Basingstoke
[14]
Even if the present petition was competent, it was manifestly premature. The true
object of the petitioners' challenge was not the decision of 14 September 2023 (which, of
itself, had no real-world effects), but the TRO which might ultimately be adopted by the
8
respondents. Before any TRO was adopted, the respondent would require to follow the
procedure set out in the 1999 Regulations. Consultation with statutory consultees had
begun on 15 December 2023, but there was as yet no draft TRO. Publication of the proposal
would take place in at least one local newspaper, and the respondent would then make
documents related to the proposal (including impact assessments) open for inspection by the
general public. That had not yet taken place. The petitioner could object to a proposed TRO
on the basis that an alternative scheme would be preferable. The respondent would, in
considering whether to make the TRO, consider all objections made to the proposal. Having
considered the objections made (if any), it would be open to the respondents to either
(a) make the TRO as proposed, (b) make the TRO subject to appropriate modifications,
(c) re-start the TRO consultation process with a modified proposal, or (d) decline to make
the proposed TRO. No TRO had yet been made in respect of Academy Street; neither was
one likely to be made (in any form) for several months. On consideration of the objections,
or the conclusions of the economic and traffic impact assessments, the respondent might
decide not to make the proposed TRO. Even if the respondent went ahead with the
proposal, the extent to which the grounds of challenge might vitiate the ultimate making of
a TRO could not be determined until that TRO was actually made, since neither its ultimate
form, nor the respondent's considered reasons for making it, were yet known. The
outstanding statutory procedure, and the fact that the form of the TRO had not been
determined, rendered the petition premature.
[15]
For those reasons, the court should dismiss the petition as incompetent, failing which
dismiss it as premature.
9
Petitioners' submissions
[16]
On behalf of the petitioners, senior counsel submitted that the respondent's decision
to proceed with finalising the proposed design was the end of a non-statutory process taken
to determine in principle the future design for Academy Street. It was not part of a TRO
process, was intended to have (and indeed was having) "real-world effect" and was
amenable to judicial review.
[17]
In relation to the competence of the petition, the challenge did not concern the TRO
process. That statutory process did not start until December 2023. The respondent chose to
undertake an exercise to decide how Academy Street should be redesigned and it chose to
consult the public as part of that exercise. It was essentially making a decision on a policy
position. The papers relevant to the process which had been gone through, and to the
decision reached, were further referred to. The petitioners challenged the respondent's
decision to exclude the previous option and prefer the current proposal as its chosen design
for Academy Street. That decision was not part of any TRO process. It was a prior decision.
Any statutory ouster of the court's jurisdiction should be interpreted strictly in accordance
with the words Parliament has chosen for it. Strathclyde Buses dealt with a very peculiar set
of circumstances remote from those in the present case, and did not assist the respondent.
The decisions impugned affected the parameters of the TRO process before it had begun.
They were decisions antecedent to, and not part of the process. They were decisions inter
alia to reject the previous option and to subject only the current proposal to further design
consideration and a TRO adoption process. The current proceedings had been commenced
before any TRO process began. An early and prompt claim for judicial review made it
possible to test the lawfulness of decisions taken in the run-up to a statutory process, saving
time and expense: Manydown at [82] - [85] and [88]. Administrative decisions that chose
10
which procedure to follow could be subject to judicial review if there was no separate
statutory right of appeal available in relation to them: Lakin Ltd v Secretary of State for
Scotland 1988 SLT 780, London and Clydeside Estates Ltd v Secretary of State for Scotland 1987
SLT 459.
[18]
In relation to the question of prematurity, the question for the court was whether the
decisions under challenge were amenable to judicial review. The petitioners submitted they
were, and that the challenge was not premature. The Academy Street project did not
comprise only a proposed TRO being promoted by the respondent as roads authority. It
was part of a wider strategy for the city as a whole, the Inverness Area Committee having
agreed in August 2021 "to retain a Spaces for People intervention in Academy Street'
pending a full accessibility assessment and the delivery of a permanent scheme." When
introducing his report to the full council meeting on 14 September 2023, the Executive Chief
Officer for Infrastructure, Environment and Economy explained that the Academy Street
proposal was "one of a number of projects being put together to regenerate the city centre
and increase its appeal for residents, visitors and businesses...". The decisions that were
approved were to note the "design progress, which struck a balance between delivering
sustainable transport, city centre regeneration and supporting the city centre economy";
and agreeing that:
"officers proceed with finalising the proposed design and consult on a Traffic
Regulation Order, as explained in section 10 of the report, including appropriate
equalities and economic impact assessments while exploring additional measures to
encourage people to travel to the city centre including park and ride and improved
public transport and active travel".
[19]
The 1999 Regulations did not require the respondent to consult the public as part of
the process for preparing a proposal for a TRO. That was an administrative matter for the
respondent and its officers. The consultation exercise it chose to carry out was not part of
11
the statutory process for making a TRO. There was no requirement for the Inverness Area
Committee to authorise officers to proceed with a TRO. The purpose of the respondent's
consultation exercise on the redesign of Academy Street was so that that Committee could
reach a decision on the principle of the design for Academy Street and instruct officers to
proceed with a TRO based on that particular design principle. It was clearly intended to
have the effect of determining the design for Academy Street in order to further the
respondent's wider aims for the city centre. The TRO process was simply one of the means
by which that decision was to be implemented. It was clear from concerns regarding the
consultation process and the potential impact of the proposal raised by elected members in
November 2022, and again in August and September 2023, that they considered they were
taking a decision that would have consequences. The public consultation process on the
design options for Academy Street and the subsequent decision to proceed with the current
proposal was a discrete process. It was not merely a "step on the way" to a TRO. The
respondent chose to undertake a consultation in relation to an "optioneering" process, to
take a decision on its preferred option at the end of that process, and only after that decision
had been taken, to proceed to commence the statutory process for a TRO based solely on
that option. The prior decision affected the parameters of the TRO process before it had
begun. It was a decision antecedent to, and not part of, the process and was amenable to
judicial review. Judicial review, generally, was concerned with actions or other events
which had, or would have, substantive legal consequences - for example, by conferring new
legal rights or powers, or by restricting existing legal rights or interests. However, the
courts should take a broad view of the justiciability of decisions, which would include "high
policy" that would plainly be material to considerations in other decisions: see R (on the
application of Greenpeace Ltd) v Secretary of State for Trade and Industry
12
[2007] Env LR 29 per Sullivan J at [53]. The respondent's decision to proceed with
the current proposal as its preferred design was clearly a fork in the road. It claimed that it
would be competent to object to the making of the TRO on the basis that an alternative
scheme would be preferable. However, it had already excluded the previous option
primarily on funding grounds and had said that it would not assess the benefits and
drawbacks of alternatives because the optioneering phase had been completed. Indeed, the
advice to the Inverness Area Committee in August 2023 was that there was no other design
solution, it was essentially the current proposal or nothing. Whilst it would be competent to
object on the basis that the previous option was a preferable alternative, the effect of the
respondent's decision would necessarily affect the approach to that alternative. It was also
clear that the respondent's officers considered themselves bound by its decision on the
principle of the design. The respondents' decision to proceed with the current proposal to
the exclusion of the previous option had had a "real world effect". The respondent
suggested that it would be open to it to "re-start the TRO consultation process with a
modified proposal". However, it could not be required to restart the process from
May 2022. It could only be required to restart the statutory consultation process for the
TRO. The decision to exclude the previous option and proceed with the current proposal as
the preferred design principle was not part of the statutory TRO process.
Decision
Competency
[20]
The respondent's principal objection to the competency of this petition for judicial
review is based on the suggestion that the ordinary supervisory jurisdiction of the court is
excluded by paragraph 37 of Schedule 9 to the 1984 Act, which provides that no TRO shall
13
"
either before or after it has been made, be questioned in any legal proceedings whatever."
The respondent argues that the only remedy available to a person aggrieved by a TRO is an
application to the court within 6 weeks after the order is made, in terms of paragraph 35 of
the Schedule.
[21]
As a straightforward matter of statutory construction, the respondent's argument in
this regard is unfounded. It is clear from the terms of paragraph 37 that what is excluded
from the court's supervision is something that can sensibly be described as an order to
which the relevant part of the Schedule applies. The paragraph equally makes it clear that
the order in question need not be in finalised or approved form; a draft going through the
statutory consultation process would qualify for its protection. In the present case, there no
order of any kind in existence and paragraph 37 accordingly does not bite.
[22]
Turning to examine the relative authorities cited to me, in the Cornwall County
Council case, the council had made orders relative to rights of way pursuant to the Wildlife
and Countryside Act 1981, but in terms of the statutory scheme those orders did not take
effect until confirmed by the Secretary of State, a step which had not yet occurred when the
plaintiffs challenged their validity on procedural grounds. The Act allowed a person
aggrieved by an order which had taken effect to apply to the High Court within 42 days of
publication of its confirmation, and provided that the validity of an order should not
otherwise be questioned in any legal proceedings whatsoever. It was held, unsurprisingly
enough, that the court had no power to quash an extant but unconfirmed order. The court
considered that the statutory scheme for challenge was clear and comprehensive. In the
present case (where the statutory regime, including the ouster clause, is in any event very
different) there is no extant order of any kind. As counsel for the respondent frankly
accepted, there may never be one.
14
[23]
Simon Brown LJ observed, citing R v Camden London BC, ex parte Comyn Ching & Co
(London) Ltd (1984) P&CR 417 and R v Secretary of State for the Environment, ex parte
Stewart (1979) 37 P&CR 279, that there might be cases where what was challenged was not a
local authority's decision itself, but rather an antecedent step quite separate and distinct
from any eventual decision reviewable under the relevant statute (p.701e) and observed that
such cases would not be caught by a statutory ouster scheme such as that in the 1981 Act.
His Lordship held, however, that a challenge against an extant but unconfirmed order could
not be brought within the scope of that principle. Although I do not consider it necessary in
the context of the ouster clause at issue in the present case to apply the "antecedent, separate
and distinct" test - because the appropriate test here is simply the presence or absence of an
order being challenged - had I been applying it, I would have concluded that it aptly
described the decisions at which the petition is directed.
[24]
In the Manydown case, the plaintiff sought to challenge the decision of a local
authority not to make available for potential development in its pre-submission draft of a
planning core strategy a large site which it owned. In terms of section 113 of the Planning
and Compulsory Purchase Act 2004, certain development plan documents could not be
questioned in any legal proceedings except on certain defined grounds. Lindblom J held
at [81] to [88] that, as with any statutory ouster of the court's jurisdiction, an interpretation
strictly in accordance with the words Parliament had chosen was required. I do not require
to have resort to that principle of statutory interpretation in arriving at my view of the
proper import of paragraph 37 of Schedule 9 in the present case, but if there had been doubt
on that score, the principle would have supported that view.
[25]
Lindblom J went on to point out that the challenge before him sought to impugn two
decisions which each affected the parameters of the process that would culminate in the
15
ultimate adoption of a core strategy. Those decisions were antecedent to, and not part of,
that process. The statutory ouster did not apply to some prior step on the part of the local
planning authority, even one that might vitiate the development plan once adopted. There
are obvious parallels with the present case, in that the decisions complained of here are
likely (indeed, calculated) to affect the parameters of the Academy Street design and the
relative TRO, but are not in themselves a part of the requisite process for making a TRO.
However, the terms of the relevant ouster clause in Manydown were also so different, in
context, from the terms in issue here, as to render inexpedient any attempt at direct
application of anything there decided to the present circumstances.
[26]
Lindblom J finally observed that the conclusion he had reached was, as well as being
legally right, also pragmatic. An early and prompt claim for judicial review made it possible
to test the lawfulness of decisions taken in the run up to a statutory process, saving time and
expense that might otherwise be wasted. I agree with those observations, but did not find it
necessary to have regard to such considerations in arriving at my view on the proper
interpretation of paragraph 37. In short, nothing in either Huntington or Manydown
informed my decision one way or the other.
[27]
A secondary strand to the respondent's argument on the competency of the petition
was based on the familiar argument that the supervisory jurisdiction of the court will not
ordinarily be exercised where an alternative remedy exists for the wrongs complained of by
the petitioner. As so often, that argument invites a very close examination of what exactly it
is that forms the subject of the complaint. In the present case, what is complained of is a
decision to start the statutory process towards a TRO within certain pre-defined parameters.
As can be seen from its terms, the statutory remedy afforded by paragraph 35 of Schedule 9
to the 1984 Act exists to deal with complaints about the validity of a TRO or any provision
16
contained in it, on the grounds that it is not within the relevant powers conferred by the Act
on the authority making it, or that any of the relevant requirements of the Act or the
1999 Regulations has not been complied with. That is not (or at least not obviously) what
the petitioners are protesting about. It is not obvious to me that the grounds upon which
they seek to impugn the 2023 decisions would necessarily carry through to be valid grounds
upon which any TRO ultimately made by the respondent could be challenged in terms of
paragraph 35. Much might depend on the incidents of the TRO process yet to be
undertaken. I do not, therefore, consider that it can confidently be said that there exists an
alternative remedy rendering recourse to the supervisory jurisdiction incompetent.
[28]
The Strathclyde Buses case involved a rather complicated set of events whereby an
initial petition for judicial review of a decision to implement an experimental traffic order
was sisted. The order was subsequently made and recourse was then had to the statutory
appeal route, but an attempt was also made to convert the existing judicial review
proceedings into a challenge to the order itself. It was held that those proceedings could not
be converted by amendment into an attack on the making of the order when paragraph 37
made it clear that such an attack could only be mounted by way of statutory appeal. The
case has nothing to say about the competency of the present proceedings, which are not an
attack on any extant order.
[29]
I did not find the cases of Lakin or London & Clydeside Estates to have any light to shed
on the proper disposal of the issues in the present case.
[30]
For the reasons stated, I shall repel the respondent's plea to the competency of the
petition.
17
Prematurity
[31]
I do not consider that the petition is premature once its true nature is appreciated.
For reasons already explained, properly viewed it does not seek to challenge any TRO;
rather, what it challenges are decisions which, in the ordinary course of things, may
reasonably be expected to affect the future design of Academy Street. That design will
probably require a TRO in order to give it effect, but it will extend, possibly widely, beyond
the mere adoption of a TRO. I do not accept that the decisions complained of are equivalent
to the "high level" policy decision at issue in the Greenpeace case, at least in the sense that
they will not affect and inform a slew of further decisions likely to have to be taken by the
respondent and others. I did not understand counsel for the petitioners to insist very hard
on the analogy. Nonetheless, they do represent a specific determination - it matters not
whether it is called a "policy" determination or not - which the petitioners maintain was
arrived at unlawfully and which is calculated in due course to affect the future design of
Academy Street, a matter in which the petitioners have an obvious and legitimate interest.
As already noted, I do not consider it obvious that everything (or indeed anything) of which
the petitioners complain would necessarily be capable of being raised as an objection to the
validity of any TRO eventually made. Nor is it clear that the current complaints could be
ventilated and decided in law as and when a finalised design for Academy Street is
eventually arrived at, whether with or without a relative TRO. In these circumstances it
cannot plausibly be maintained that the petition embodying them is premature, and I shall
repel the respondent's relative plea.
18
Further issue
[32]
In the course of the hearing I raised a further issue with counsel, enquiring whether,
if the court were ultimately to reduce the 2023 decisions, that would have any practical effect
on the ability of the respondent to give effect to its current plans for the redesign of
Academy Street. It will be recalled that the process gone through by the respondent before
the decisions in question, the incidents of which are said to have generated the petitioners'
grounds of complaint, was an entirely voluntary one. In these circumstances it seemed to
me to be at least possible for the respondent, on seeing those decisions reduced,
metaphorically to shrug its shoulders and make a new decision in the same terms without
any further process whatsoever. Counsel on both sides indicated that they considered that
that would be a "risky" thing for it to do. For my own part, I do not immediately see why,
suitably advised and acting in accordance with that advice, the respondent might not be able
to draw a firm line under what has already happened and yet lawfully proceed upon the
same course as that which it is presently pursuing. This might be thought to be a matter
capable of affecting fundamentally various aspects of the petition. However, given that the
matter was raised by me and not the subject of full argument in the course of the hearing,
and in deference to the initial views expressed by both experienced and knowledgeable
counsel, I do not (at least for now) press the question further.
Conclusion
[33]
I shall repel the respondent's first and second pleas-in-law (relating to the
competency and prematurity of the petition respectively) and fix a further hearing for the
determination of the remaining substantive issues in the case.
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