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Reclaiming Motion by Simon McLean against Aberdeen City Council (Court of Session) [2025] CSIH 13 (20 May 2025
URL: http://www.bailii.org/scot/cases/ScotCS/2025/2025csih13.html
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[2025] CSIH 13
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2025] CSIH 13
P868/23
Lord Malcolm
Lord Armstrong
Lord Clark
OPINION OF THE COURT
delivered by LORD MALCOLM
in the reclaiming motion
by
SIMON McLEAN
Petitioner and Reclaimer
against
ABERDEEN CITY COUNCIL
Respondent
Petitioner and Reclaimer: Cherry, K.C, M Dailly, (sol adv); Drummond Miller LLP (for Govan
Law Centre, Glasgow)
Respondent: N McLean, (sol adv); Brodies LLP
20 May 2025
[1]
Mr Simon McLean lives in Torry, Aberdeen, and along with others uses nearby
St Fittick's Park (the Park) for recreational, health and general wellbeing purposes. It is
owned by Aberdeen City Council. These proceedings arise from a concern that part of the
Park will be given over to industrial and business use. In 2021 ETZ Ltd was established as a
private sector led not - for - profit company aiming to create what has been described as an
"integrated energy cluster" focussed on delivery of net zero. In terms of the Aberdeen Local
2
Development Plan 2023, adopted by the Council in June 2023, an area of the Park was
designated as part of an Energy Transition Zone at Aberdeen South Harbour with a policy
presumption in favour of development related to renewable energy.
[2]
In 2023 ETZ submitted a masterplan to the Council. While it was out for
consultation, the Chief Officer of the Council's Corporate Landlord function prepared a
report to the Council entitled "Land Options within the Energy Transition Zone", the stated
purpose being to provide an updated position on the planning status of the land under
Council ownership. It presented options to develop three sites, including part of the Park, in
a strategic Partnership with ETZ and the Port of Aberdeen to drive a transition towards
renewable energy technologies and sustainable practices.
[3]
The author's recommendations included that the Park be made available to support
future investment and development in the Energy Transition Zone, whilst also improving
local amenity; that it should remain in Council ownership; and that he should enter into
discussions as to optimum partnership arrangements and consider how returns could be
re-invested in the Zone and the local community. The outlined options were: (i) do nothing,
(ii) development by the Council, (iii) sale of the sites, and (iv) development in partnership
with ETZ and the Port. It was recognised that if delivered the proposals would involve
greenfield land being developed for business use which may generate objections. It was
stated that an integrated impact assessment was not required at this stage.
[4]
The report was considered by the Council on 11 September 2023. The resultant
resolution included the following. The Park and another site should remain in Council
ownership and only be available for lease where an end user and financial terms were
agreed by the Council. The Chief Officer should begin formal dialogue with ETZ and the
Port to discuss the optimum partnership arrangements to take forward the future
3
development of the sites and ensure delivery of the outcomes identified by ETZ in its
masterplan and in the North East Regional Economic Strategy. There would be engagement
with ETZ, the Port, and any other interested party as to any development proposals,
including mitigation measures relative to the impact on local residents. Consideration was
required as to how a proportion of the lease income could be used for the benefit of the local
community, with approval of any leases contingent on approval of the community benefit
package. The outcome of discussions was to be reported to the Council.
[5]
Mr McLean lodged a petition seeking judicial review of the resolution of
11 September 2023 and an order setting it aside so far as it concerns St Fittick's Park. The
resolution was challenged on the basis that certain of the councillors had a personal interest
or apparent personal interest in ETZ, and thus the decision was vitiated by apparent bias. It
was also contended that industrial development of the Park had been predetermined by the
Council thus it had fettered its discretion, and separately, there had not been a fair process in
breach of the petitioner's legitimate expectation. Furthermore it was submitted that the
Council failed in its public service equality duty under section 149 of the Equality Act 2010
when reaching what was described as a policy decision in relation to the Park; and it ought
first to have carried out an equality impact assessment in terms of Regulation 5 of the
Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. It is said that this would
have identified the impact of development of the Park upon those with the protected
characteristics of age and disability.
[6]
The Lord Ordinary's and this court's attention was drawn only to the proposition
that an equality impact assessment was required in respect of the Chief Officer's report so
far as it related to the Park; the remaining complaints were either refused permission or not
maintained. The Council lodged an affidavit from the author of the report which recorded
4
his view that at its meeting the Council had not made a decision to lease the Park for
development. Until a number of matters became clear he would be unable to make a
recommendation as to its future use.
[7]
In the view of the Lord Ordinary (see [2024] CSOH 77 ) the Council did no more than
rule out selling the Park and authorise discussions with potential developers/tenants as to
what development of the Park and other areas might entail. The desire was to collect
information which would then be reported to the Council. Logically that process should
precede the exercise sought by Mr McLean. An equality impact assessment at this stage
would have to be done without knowledge of the proposal under consideration. It was
noted that there had been no challenge to the designation of the Park as suitable for
development in the Aberdeen Local Development Plan. The passing of the resolution of
11 September 2023 in the absence of an equality impact assessment involved no breach of
statutory duty thus the petition was refused. The petitioner has reclaimed (appealed) that
decision to this court.
[8]
The Lord Ordinary described the issue in dispute as a very narrow point. We agree.
The key submission before this court was that the Lord Ordinary erred in his
characterisation of the Council's resolution. Contrary to the description suggested by the
Council, it was not "a step along the way" of a wider decision-making process; the
resolution was an important policy decision approving development of the Park. It
followed that the public service equality duty was engaged.
[9]
Various authorities on the subject from England and Wales were cited, however
there was nothing between the parties as to the law. We do not consider it necessary to
rehearse the well-established legal principles relating to the section 149 obligations on the
Council; they can be found in Bracking v Secretary of State for Work and Pensions
5
[2013] EWCA Civ 1345 at paragraph 25. It is plain that not every decision by a public body requires an
equality impact assessment; were it otherwise public administration would grind to a halt.
mandate the production of an assessment at any particular moment in a process of
decision-making (paragraph 10). In Shrewsbury and Atcham BC v Secretary of State for
judicial review is concerned with actions or other events which have, or will have,
substantive legal consequences (paragraph 32).
[10]
The determining factor here is whether the proposition that the resolution was a
policy decision which approved development of the Park is well-founded. In our view it is
not. We have not identified any flaw in the Lord Ordinary's reasoning. The resolution of
11 September 2023 concerning the Park occurred in the policy context of it having already
been designated in the Aberdeen Local Development Plan as potentially suitable for
development, including industrial use. That designation was not challenged. Any
development of the Park is contingent on the grant of planning permission and a Council
resolution to lease the Park. Unlike the resolution of 11 September 2023, both of those
decisions carry the potential to create substantive legal rights. However, the resolution
under challenge involves no more than the ingathering of information in the light of a policy
decision already made and which may, or may not, lead to a process which does engage the
public service equality duty. It cannot be said that, in the absence of a specific proposal, the
view that an equality impact assessment was not required was unreasonable or erroneous in
law. As submitted for the Council, it was entitled to await details as to any proposed
development, including the economic and social effects; potential mitigations; any
community benefits; and the potential for re-investment arising from a transaction.
6
[11]
Some reliance was placed on the drilling of bore holes in the Park, but this did not
change the nature of the impugned resolution. We were informed that drilling was allowed
by a licence granted under delegated powers as part of the information gathering process,
specifically regarding ground conditions and any restraints on development. The
submission based on the 2012 Regulations does not advance matters. Regulation 5 and the
potential engagement of the section 149 duty arises only in the context of the application of a
proposed new or revised policy or practice.
[12]
For these reasons the reclaiming motion is refused. We adhere to the
Lord Ordinary's refusal of the petition in his interlocutor of 7 August 2024.
[13]
By way of a postscript it can be noted that planning permission in principle for
development of land, including part of the Park, was granted subject to conditions on
24 January 2025. It was preceded by an integrated impact assessment dated 30 October 2024
which, among other things, considered Equality Act 2010 protected characteristics. On
behalf of Mr McLean it has been submitted that it failed to comply with the statutory
requirements; however, given the court's decision that the challenge to the resolution of
11 September 2023 was properly refused, the competence or otherwise of that subsequent
assessment is of no relevance in this reclaiming motion.