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Gartmore House, Re [2022] ScotCS CSOH_24 (4 March 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022csoh24.html
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[2022] ScotCS CSOH_24,
[2022] CSOH 24,
2022 GWD 9-137,
2022 SLT 713
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 24
P482/21
OPINION OF LORD CLARK
In the Petition of
GARTMORE HOUSE
Petitioner
for
Judicial Review of a decision of Loch Lomond and the Trossachs National Park Authority
dated 14 June 2021 to adopt a proposed Amended Core Paths Plan
Petitioner: Burnet QC; Gillespie Macandrew LLP
Respondent: MacColl QC; Anderson Strathern LLP
Interested party: McLean (sol-adv); Scottish Government Legal Directorate
4 March 2022
Introduction
[1]
The petitioner is a charitable organisation. It owns and operates a hotel with an
adjacent accommodation block in Gartmore Estate, near the village of Gartmore, within the
Loch Lomond and Trossachs National Park. The petitioner's property is used frequently to
accommodate groups of children (including vulnerable children) and groups of people from
a religious background. Those who attend take part in a variety of activities, including
using the grounds for recreation and outdoor events.
[2]
The respondent is the Loch Lomond and Trossachs National Park Authority. In
terms of the Land Reform (Scotland) Act 2003, the respondent is the Access Authority for the
2
area in which the petitioner's property is situated. In that capacity, in 2021 the respondent
adopted what is described as an amended Core Paths Plan for the Loch Lomond and
Trossachs National Park. The Scottish Ministers directed the respondent to adopt it. The
amended Core Paths Plan allows public access through routes located within the grounds
of the petitioner's property.
[3]
The petitioner seeks reduction of the amended Core Paths Plan and, if deemed
necessary, reduction of the direction from the Scottish Ministers. Reduction is sought on
the basis that the adoption was unlawful because the respondent and the Scottish Ministers
failed to apply the correct test for the addition of new paths under the 2003 Act (ground 1)
and, separately, also failed to comply with their duties under the Equality Act 2010
(ground 2). The respondent lodged answers to the petition, denying these contentions, as
did the Scottish Ministers who entered the process as the interested party. A preliminary
point was also raised by the respondent, that its decision to adopt the amended Core Paths
Plan was not amenable to judicial review as the respondent was bound by statute to follow
the direction of the Scottish Ministers.
Background
[4]
In 2010 the respondent adopted the original Core Paths Plan for the area, which did
not include any core paths across the petitioner's property. Between November 2018 and
April 2019, the respondent carried out a formal public consultation in relation to proposed
changes to the original Core Paths Plan. Among other things, the respondent proposed
two additional core paths (proposed paths ADD23 and ADD27), situated in part within the
petitioner's property, to be added to the network of core paths for the area. The proposed
added paths would run through the petitioner's property close to the accommodation block
3
and the land used by visiting groups. In a letter to the respondent dated 15 February 2019
and in a further letter from its agents dated 28 October 2019 the petitioner objected to the
additional core paths being added to the network. The respondent refused to amend the
proposed amended Core Paths Plan and submitted the petitioner's representations to the
Scottish Ministers as an outstanding objection. The Scottish Ministers directed that a public
inquiry be held. The Ministers appointed one of their reporters to hold an inquiry. The
petitioner's agents made written submissions to the Reporter on 16 April 2020 and 11 June
2020.
[5]
The Reporter submitted his report and recommendation to the Scottish Ministers on
10 December 2020. The report recommended that the proposed additional paths within
Gartmore Estate be included in the amended Core Paths Plan. The Reporter's conclusions in
relation to the objections of the petitioner include the following:
"8. I agree that the village of Gartmore is already well-provided with core paths.
However, three of these utilise public roads, and so are not ideal, in my mind, for
the purpose of giving public access to the area surrounding the village. I therefore
consider that the addition of paths ADD23 and ADD27 will provide a significant
benefit to the sufficiency of the network by giving the public a better opportunity
to access the area off-road.
...
17. It is important that the safety and wellbeing of guests and clients is safeguarded,
particularly children and vulnerable people. However it does not seem to me
unusual to have such groups undertaking activities, in a managed setting and in line
with appropriate safeguarding measures and risk assessments, in areas to which the
public is also encouraged to take access. Examples include the activities of cubs and
brownies, and school sports days that can take place in public parks.
18. Above, the authority describes how this interaction could be managed with, for
instance temporary signage and diversions while activities are taking place, and
having staff on-hand to provide advice and manage any interactions. The authority
has offered to work with the objectors to prepare an access management plan.
All-in-all, for the reasons stated, I do not consider that the difficulties raised by
the objectors appear insurmountable".
4
[6]
By letter dated 23 March 2021 the Scottish Ministers accepted the Reporter's
recommendation and directed the respondent to adopt the amended Core Paths Plan in line
with the recommendations in the report. On 14 June 2021, the respondent's board resolved
to adopt the amended Plan.
Statutory provisions and guidance
Ground 1
[7]
The concept of "Core paths" was introduced by section 17 of the Land Reform
(Scotland) Act 2003:
"17 Core paths plan
(1) It is the duty of the local authority, not later than 3 years after the coming into
force of this section, to draw up a plan for a system of paths (`core paths') sufficient
for the purpose of giving the public reasonable access throughout their area.
...
(3) In drawing up the plan, the local authority shall have regard to-
(a) the likelihood that persons exercising rights of way and access rights will do
so by using core paths;
(b) the desirability of encouraging such persons to use core paths; and
(c) the need to balance the exercise of those rights and the interests of the owner
of the land in respect of which those rights are exercisable."
[8]
Section 18 of the 2003 Act requires each local authority, or Access Authority such as
the respondent, to undertake a formal public consultation exercise prior to adopting a Core
Paths Plan for its area. To be effective a Core Paths Plan requires to be adopted by the
Access Authority in terms of the 2003 Act. It is only on adoption by the authority that a
Core Paths Plan or amended Core Paths Plan comes into effect.
5
[9]
Further provisions are made in relation to the review and amendment of a Core
Paths Plan, under sections 20 and 20A of the 2003 Act (as amended and introduced by
the Land Reform (Scotland) Act 2016):
"20 Review and amendment of core paths plan
(1) A local authority
(a) must review the plan adopted under section 18 (or that plan as amended
under this section or section 20C) if Ministers require them to do so,
(b) may review such a plan if they consider it appropriate to do so for the
purpose of ensuring that the core paths plan continues to give the public
reasonable access throughout their area.
...
(6) Where, following a review of a plan under subsection (1) above, the local
authority consider that the plan should be amended so as to include a further path,
waterway or other means of crossing land such as is mentioned in section 17(2)
above, the authority shall draw up an amended plan...
20A Review and amendment of core paths plan: further procedure
(1) Where, following a review of a plan under section 20(1), the local authority
consider that a plan should be amended, the local authority must--
(a) give public notice of the amended plan and any maps it refers to,
(b) make the original plan and the amended plan and any such maps available
for public inspection for a period of not less than 12 weeks, and
...
(3) If an objection is made and not withdrawn, the local authority must not adopt the
amended plan unless Ministers direct them to do so.
...
(5) Where an objection remains unwithdrawn, Ministers must not make a direction
without first causing a local inquiry to be held into whether the amended plan (or,
as the case may be, the modified amended plan) will, if adopted, fulfil the purpose
mentioned in section 17(1).
...
(8) Following the publication of the report by the person appointed to hold the
inquiry, Ministers may (but need not) direct the local authority to adopt the amended
6
plan (or, as the case may be, the modified amended plan) either as drawn up under
section 20 or with such modification as Ministers specify in the direction.
(9) On adopting the amended plan, the local authority must--
(a) give public notice of the adoption of the amended plan..."
[10]
The Scottish Government issued guidance, entitled "Part 1 Land Reform (Scotland)
Act 2003 - Guidance for Local Authorities and National Park Authorities". In relation to
section 17, the guidance states:
"The planning of a core path system which is `sufficient' for this purpose under the
Act should be based on local consultations. The local authority in drawing up the
plan should particularly involve the local access forum as a major consultee. Core
paths should aim to meet the needs of the whole community, including visitors,
and the system should contribute to achieving key public policy objectives including
health, sustainable transport, social inclusion and rural regeneration. The system
will need to be achievable and sustainable, so will also take account of resource
availability".
In relation to section 20(1), the guidance states:
"It is expected that when drawing up the core path plan, local authorities will need
to consider what the access requirement will be and to take a `holistic' view of those
requirements to ensure that they are met within the plan. This should ensure that
there should not be a frequent need for local authorities to add new paths to the core
path plan.
However, it is also recognised that circumstances will change over time, and the plan
should not be seen as a finite document, but be capable of developin g to reflect
requirements. Authorities should, when they consider it appropriate, review their
core paths plans to ensure that at any given time they continue to meet the current
requirements for core paths in their areas, either through removals or diversions or
through additional core paths."
Ground 2
[11]
Section 149 of the Equality Act 2010 ("the Equality Act") provides:
"149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the
need to --
(a) eliminate discrimination, harassment, victimisation and any other conduct
that is prohibited by or under this Act;
7
(b) advance equality of opportunity between persons who share a relevant
protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected
characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must,
in the exercise of those functions, have due regard to the matters mentioned in
subsection (1).
(3) Having due regard to the need to advance equality of opportunity between
persons who share a relevant protected characteristic and persons who do not share
it involves having due regard, in particular, to the need to-
(a) remove or minimise disadvantages suffered by persons who share a relevant
protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected
characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate
in public life or in any other activity in which participation by such persons is
disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different
from the needs of persons who are not disabled include, in particular, steps to take
account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who
share a relevant protected characteristic and persons who do not share it involves
having due regard, in particular, to the need to
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons
more favourably than others; but that is not to be taken as permitting conduct that
would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are
age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation."
8
Submissions
Submissions for the petitioner
Preliminary point
[12]
The present proceedings challenge the administrative act of the adoption of the
amended Core Paths Plan rather than only the decision taken by the respondent's board
on 14 June 2021 to formally approve the adoption. If (as is contended by the petitioner) the
adoption is based on a direction that was unlawful on the basis of the grounds identified in
the petition, the petitioner is entitled to seek reduction of the plan. Reference was made by
analogy to the right to challenge the adoption of a local development plan on the basis of
failings in the procedure leading to the adoption of that plan: Eadie Cairns Ltd v Fife
Council [2013] CSIH 109. In any event, duties under the Equality Act 2010 are continuing
duties, imposed by primary legislation, that require to be considered at all stages of the
process. Given the petitioner's criticisms of the respondent in its submissions to the
Reporter, the respondent could have and should have considered that issue again on 14 June
2021.
Ground 1: Misinterpretation and misapplication of the statutory test under the 2003 Act
[13]
Paragraph 8 of the Reporter's conclusions (quoted above, at para [5]) indicated that
the Reporter had accepted that the village of Gartmore is already well provided with core
paths and the additions are to improve the choice and quality of core paths in the area as
opposed to being required to reach a sufficiency. The Reporter failed to apply the correct
test in terms of section 17(1) of the 2003 Act, that is, to consider whether the public already
have reasonable access to the area. He thereby misinterpreted or misapplied the relevant
criteria for adding a path to the Core Paths Plan as opposed to providing it as part of the
9
original network. His final conclusion that the proposals "meet the Ministers' expectations"
for core paths also indicated that he did not concentrate on the question of the sufficiency of
the existing network without the proposed additions as opposed to the question of whether
the additions would be a desirable improvement.
[14]
The question the Reporter, the Scottish Ministers and the respondent required to
address was whether the additional paths are necessary to make the network sufficient, not
whether it would be improved by the additions. They failed to proceed on that basis and in
doing so erred in law. They also failed to give proper, adequate and intelligible reasons for
the adoption of the amended Core Paths Plan. The Reporter required to balance the
interests of the landowner (and those using the land) against the interests of those who
would be exercising the access rights over the core paths not whether, as he said at
paragraph 18 (also quoted above at [para [5]) the difficulties for the landowner would be
"insurmountable".
Ground 2: Breach of statutory duty under the Equality Act 2010
[15]
A decision-maker ought to record the steps it takes to meet the statutory
requirements under the Equality Act 2010 in order to demonstrate it has discharged its duty:
upon the decision-maker personally. The decision-maker cannot be taken to know what his
or her officials know or what may have been in the minds of officials in proffering their
at [26]-[27]. The decision-maker must assess the risk and extent of any adverse impact and
the ways in which such risk may be eliminated before the adoption of a proposed policy and
10
not merely as a "rearguard action", following a concluded decision: Kaur & Shah v LB
[16]
The petitioner objected to the addition of the additional core paths inter alia on the
basis that the respondent had failed to properly consider and apply its obligations under the
Equality Act 2010. The Reporter, the Scottish Ministers and the respondent failed even to
record that the petitioner had made representations to them in relation to their duty under
the 2010 Act in relation to the use of the petitioner's land. The Ministers failed to have due
regard to the matters set out in section 149 of the 2010 Act and thereby breached their
statutory duties under the Act. They also failed to give proper, adequate and intelligible
reasons for the decision to adopt the amended Core Paths Plan.
[17]
The EQIA dated 29 October 2018 undertaken by the respondent in relation to its
proposal to amend the original Core Paths Plan was not adequate to fulfil the respondent's
duty when adopting the amended Plan. The respondent's duty and the Ministers' duty
under section 149 of the 2010 Act required them to give consideration to the adverse effects
which adding core paths could have on persons with protected characteristics, not just to
consider whether there were barriers to such persons making representations.
[18]
In any event, the duty is on the decision-maker themselves, and it is a continuing and
non-delegable duty. In reaching their own decision the Ministers required to consider their
own duties under the 2010 Act. They were not entitled to rely on the respondent or the
Reporter. Moreover, no mention is made by the Reporter of him being aware of any duty on
him, the Scottish Ministers or the respondent as public authorities in terms of the 2010 Act.
The Reporter was not considering the protected characteristics of vulnerable children on
which the petitioner's submissions were based.
11
Submissions for the respondent
Preliminary point
[19]
The petition should be refused as it seeks reduction of a decision of the respondent
which is not susceptible to judicial review. The Scottish Ministers, under and in terms of the
2003 Act, directed the respondent to adopt the amended Core Paths Plan and the 2003 Act
required the respondent to comply with that direction. The respondent had no discretion
whether or not to comply with the direction.
Ground 1: Misinterpretation and misapplication of the statutory test under the 2003 Act
[20]
The Reporter had directly (and properly) addressed himself to the provisions of
section 17(1) of the 2003 Act. The Reporter also clearly and properly addressed himself to
the issue of the potential impact of the proposed paths on children and vulnerable groups
making use of the petitioner's property. He noted in plain terms the petitioner's objections.
He then went on to address them in his analysis. Having approached matters in this way,
the Reporter was entitled to reach the conclusions he did and to make the recommendations
contained in his report. The Reporter provided proper, adequate and intelligible reasons for
his recommendations in the Report.
Ground 2: Breach of statutory duty under the Equality Act 2010
[21]
The relevant considerations under the Equality Act 2010 were fully taken into
account and addressed in the course of the process leading to the adoption of the amended
Plan. The potential impact of the proposed paths on those with protected characteristics
under the 2010 Act (particularly children and vulnerable groups making use of the
12
petitioner's property) was a matter that was drawn to the attention of the Reporter and
specifically addressed by him in his analysis.
[22]
Furthermore, from an early stage in the process, the respondent considered the
potential impact of the proposed amended Core Paths Plan on the petitioner's property.
Reference was made, for example, to the letter from the respondent to the petitioner dated
12 August 2019. Moreover, the respondent undertook an EQIA on 29 October 2018 in
advance of undertaking its consultation on the proposed amended Core Paths Plan. That
assessment sought to identify and address barriers to participation in the consultation
process. No such barriers existed and representations were made to, and considered by,
both the respondent and the Reporter.
[23]
The respondent had due regard to the matters under section 149 of the 2010 Act
throughout and by way of the process leading to the adoption of the amended Core Paths
Plan. So far as the respondent was aware, the Reporter and the Scottish Ministers also had
due regard to those matters. Consideration of the adverse effects which adding core paths
could have on persons with protected characteristics was addressed in the process leading to
the adoption of the amended Core Paths Plan. The approach of the petitioner was to elevate
issues of form over those of substance. Looking at the process as a whole, the requirements
of section 149 of the 2010 Act were met. Reference was made to R (on the application of
Submissions for the interested party
Ground 1: Misinterpretation and misapplication of the statutory test under the 2003 Act
[24]
The Scottish Ministers' role was limited to appointing, in appropriate circumstances,
a person to resolve outstanding objections at a local inquiry, and to make a direction
13
following the resolution of those objections (sections 18(4) and 20A(5) and (8) of the
2003 Act). The petitioner's first ground of challenge required the report by the Reporter to
be read in an overly restrictive way. The Reporter directly and properly addressed himself
to the provisions of section 17(1) of the 2003 Act. Reading the report as a whole, it was clear
that the Reporter considered the representations made, applied the correct test, and that
there was no error of law in his approach.
[25]
The Reporter was entitled to reach his conclusion based on the information before
him and exercising his own planning judgement. The guidance recognised that a Core Paths
Plan will change with circumstances over time and that the respondent has a wide discretion
to review the plan for its area. There was no obligation on the Reporter to consider why
paths ADD23 and ADD27 had not been part of the original Core Paths Plan. The Reporter's
decision on the addition of core paths ADD23 and ADD27 was made having considered the
objections from the petitioner, representations from the respondent, representations from
members of the local community, and the Reporter's own observations as part of his site
visit on 6 July 2020.
Ground 2: Breach of statutory duty under the Equality Act 2010
[26]
The petitioner's position was not supported by a relevant averment. The petitioner's
objections provided limited detail or specification as to how the adoption of the proposed
additional paths ADD23 and ADD27 would adversely impact those with protected
characteristics. It was clear, reading the decision as a whole, that the Reporter engaged
with the petitioner's representations on equalities issues (such as they were) and therefore
complied with the 2010 Act as a matter of substance. He recognised the equalities issues
raised by the petitioner but his conclusion was one which he was entitled to reach based on
14
the information before him and exercising his own planning judgement. Even if the Scottish
Ministers failed to comply then it was highly likely that their decision would not have been
substantially different. Reference was made to R (on the application of Danning) v Sedgemoor
District Council [2021] EWHC 1649, at [61]-[63]. If there had been a breach of the public
sector equality duty by the Scottish Ministers the court should exercise its discretion not to
quash the direction.
Decision and reasons
Preliminary point
[27]
Senior counsel for the respondent preferred to rest his case on the substantive issues
and did not seek to develop the brief points made in written submissions on the preliminary
matter. In my view, while the respondent was directed by the Scottish Ministers to adopt
the amended Core Paths Plan, the respondent still went through a decision-making process.
As explained further below, a paper prepared on behalf of the respondent for approval of
the Core Paths Plan Review was presented and the board agreed to give approval.
Moreover, even taking the direction to mean that there was no decision reached in relation
to the additional paths, if the direction was based upon unlawful conclusions by the
Reporter that would be a relevant factor in relation to the action of the respondent. If
the petitioner were to succeed on its second ground, again that would suffice to allow the
decision to be challenged, even though it followed upon a direction. The preliminary point
made by the respondent does not therefore succeed.
15
Ground 1: Misinterpretation and misapplication of the statutory test under the 2003 Act
[28]
A similar approach to that taken when considering review of planning decisions falls
to be applied to the report issued by the Reporter. Thus, the report must be read (i) fairly
and in good faith, and as a whole; (ii) in a straightforward down-to-earth manner, without
excessive legalism or criticism; and (iii) as if by a well-informed reader who understands
the principal controversial issues in the case: Abbotskerswell Parish Council v SOSHCLG &
authorities. The document setting out the decision should not be subjected to detailed
textual analysis and criticism: Moray Council v The Scottish Ministers 2006 SC 691,
Lord Justice-Clerk (Gill) at [28].
[29]
The Reporter was required to exercise his judgment having considered all of the
material before him, including the objections from the petitioner. The report began with a
covering letter in which the Reporter expressly noted that the main question for the inquiry,
in compliance with section 18(4) of the 2003 Act, was whether the changes, if adopted, fulfil
the purpose mentioned in section 17(1) of providing a system of paths sufficient for the
purpose of giving the public reasonable access throughout the authority's area. That is
his task, as stated in section 20A(5). He explained that he had drawn upon other relevant
sections of the Act and guidance, including "Part 1 Land Reform (Scotland) Act 2003:
Guidance for Local Authorities and National Park Authorities", published in 2005. He
noted that the existing Loch Lomond and the Trossachs Core Path Plan was adopted in 2010
and then made specific reference to section 20 of the 2003 Act and its key terms.
[30]
The letter referred to the formal public consultation process, that ran from
November 2018 to April 2019. The Reporter had requested and received written
submissions and supplementary written submissions on behalf of the petitioner. The
16
report then set out summaries of the petitioner's objections and the respondent's response
made to the Reporter. In the section headed "Reporter's Conclusions", he sets out, in
24 paragraphs, his conclusions and his reasons for reaching them. A recurring theme in his
report is that the additional Core Paths will minimise the need for the public to be on public
roads when, for example, walking between various locations. In particular, in paragraph 8
(quoted above) he decided that the addition of the paths "will provide a significant benefit
to the sufficiency of the network by giving the public a better opportunity to access the area
offroad". The reference to "sufficiency" reflects and addresses the requirements of
section 17(1) of the 2003 Act, which he had already identified as having to be met. He was
not able to identify a suitable and better route than the proposed added paths. It is clear that
he was not addressing himself only to the question of improving access; rather, he was
directly and specifically addressing the tests as set out in the statute.
[31]
The petitioner founds upon the fact that the original plan (in 2010) must have been
considered sufficient for the purpose of giving the public reasonable access throughout the
area. Under section 20(1)(b) of the 2003 Act, the authority may review the plan, for the
purpose of "ensuring that the core paths plan continues to give the public reasonable access
throughout their area". The guidance refers to the possibility of a change in circumstances
as a basis for adding further paths. But it cannot, in my view, be correct that absent a change
in circumstances the previous decision as to what paths were required is somehow
conclusive and binding and must remain as it was, without additions. There is nothing in
the wording of the statute, or the guidance, to that effect. Rather, section 20(1)(b) recognises
that the position may be reviewed and that provision is not to be read as requiring a change
in circumstances. It simply allows a review which may result in a different and additional
approach to achieving sufficient reasonable access.
17
[32]
In paragraph 17, as quoted above, the Reporter refers to children and vulnerable
groups. He makes reference to two examples, which as senior counsel for the petitioner
observed differ from the kind of persons using the petitioner's grounds. But these were
simply examples and do not in my view, when reading the whole report, in any way
undermine the approach he took. One of the factors which the Reporter specifically took
into account in relation to proposed path ADD27 is that it will divert walkers away from
the more sensitive parts of the petitioner's property.
[33]
In relation to the reference to "insurmountable" in paragraph 18 of the report, when
read in context the Reporter was simply saying that there were ways, proposed by the
authority, to assist the petitioner in respect of its concerns about groups undertaking
activities in the areas to which the public also had access. Any difficulties regarding that
specific point could be mitigated and in that respect were not insurmountable. He was
referring to practical ways of dealing with the petitioner's concerns when considering how
the provision of the added paths would interact with or affect groups using the grounds.
When read in the context of the report as a whole, paragraph 18 simply formed part of the
balancing exercise carried out by the Reporter. He properly balanced the interests of the
landowner (and those using the land) against the interests of those who would be exercising
the access rights over the additional core paths.
[34]
I see no real force in the petitioner's further point that the Reporter failed to give
proper reasons for the adoption of the Plan. His reasons meet the test of being proper,
adequate and intelligible: North Lanarkshire Council v Scottish Ministers 2017 SC 88,
Lord Drummond Young, giving the Opinion of the court, at [27]-[32]. The informed
reader is left in no substantial doubt: South Bucks DC v Porter (No 2) [2004] 1 WLR 1953,
Lord Brown at [35]-[36]; Moray Council v The Scottish Ministers 2006 SC 691,
18
Lord Justice-Clerk (Gill) at [28]-[30]; Wordie Property Co Ltd v Secretary of State for
Scotland 1984 SLT 345 Lord President (Emslie) at 348. The fact that he expressed the
decision reasonably succinctly is of no moment: Taylor v Scottish Ministers 2019 SLT 681,
Lord President (Carloway) at [46], citing with approval Uprichard v Scottish Ministers 2013
SC (UKSC) 219, Lord Reed at [48].
[35]
The Reporter was entitled to reach the conclusions he did and to make the
recommendations contained in his Report. There was no misinterpretation or
misapplication of the statutory test under the 2003 Act and no error of law. I therefore
conclude that the petitioner's first challenge is not well-founded and must fail.
Ground 2: Breach of statutory duty under the Equality Act 2010
[36]
Parties were in agreement about the relevant legal principles to be applied. Various
cases in which key points are summarised were referred to in submissions, including
Bracking v Secretary of State for Work and Pensions, McCombe LJ at [24]-[26]) and Hotak v
suffices simply to note the following points from particular cases. It is clear that a decision
will not be erroneous in law simply because the statutory language or statutory test has not
specifically been referred to in it: R (on the application of Garner) v Elmbridge BC
substance of the decision and its reasoning, the decision-maker has had due regard to the
relevant statutory need: R (on the application of Baker) v Secretary of State for Communities and
regard to the policy objectives in section 149 and if these are properly considered and put in
the balance it is for the decision-maker to decide what weight to give to them: R (on the
19
at [146]-[147].
[37]
The equality issue that arose here, as referred to in the submissions on behalf of the
petitioner made to the Reporter, was the potential impact of the additional paths on children
and vulnerable groups. No express reference was made in the report to the public sector
equality duty under the 2010 Act but, as already indicated, the Reporter properly considered
that matter in reaching his conclusions. Looking at the substance of his decision and
reasoning, he therefore recognised and had due regard to the equality issue raised. He put it
in the balance, giving weight to the point, but concluded that it did not outweigh the other
relevant factors.
[38]
Turning to the alleged failures by the respondent and the Scottish Ministers to
comply with the public sector equality duty, it is correct (as the authorities make clear)
that the duty is non-delegable. Senior counsel for the petitioner submitted that the
decision-maker cannot be taken to know what his or her officials know or what may
have been in the minds of officials in proffering their advice (under reference to R (National
at [26]-[27]. He also relied upon the point that the assessment on equality must be done
before the adoption of a proposed policy and not merely as a "rearguard action", following
a concluded decision: Kaur & Shah v LB Ealing, Moses LJ at [23]-[24].
[39]
It is correct that neither the respondent nor the Scottish Ministers issued a document
which made reference to them having had due regard to the requirements of section 149 of
the 2010 Act. However, by their letter to the respondent dated 23 March 2021, the Scottish
Ministers stated that they had considered the Reporter's findings and recommendations and
accepted his recommendations. At the meeting of the respondent's board on 14 June 2021 a
20
paper for approval of the Core Paths Plan Review was presented. Among other things, the
paper referred to the inquiry, the report and the letter of direction from the Scottish
Ministers, and recommended that the board formally adopt the amen ded Core Paths Plan.
The report was appended to the paper. The paper noted that the Reporter agreed with the
respondent's position relating to all outstanding objections. The board members agreed to
formally adopt the amended Plan.
[40]
In my view, there is no requirement, whether in the 2010 Act or identified in the
authorities, for the respondent or the Scottish Ministers to set out in a document their own
respective positions in relation to the equality issues. The report, and the Reporter's
reasoning and conclusions, formed an integral part of the overall process and were plainly
fundamental to the decisions of the respondent and the Scottish Ministers. The inquiry
is the specified approach under the 2003 Act. Thereafter, the Scottish Ministers were in
the position of deciding whether or not to accept the Reporter's reasoning and
recommendations. These were accepted in full. The respondent was directed to adopt the
recommendations. In those circumstances, the core underlying document, expressly
accepted and adopted by the Scottish Ministers and at least by clear implication also by
the respondent, suffices if it addresses in substance the issues in section 149. It does so.
Properly viewed, it is inherently part and parcel of the reasons why the respondent and
Scottish Ministers reached their decisions. They were not relying on what they thought was
in the mind of officials, nor were they taking a "rearguard action". There was no need to
carry out, as it were, a form-filling exercise stating that regard had been had to the
provisions of the 2010 Act when the adopted report clearly did so.
[41]
The respondent's EQIA focused upon whether there were barriers to the making of
representations by or on behalf of person s with protected characteristics, which I accept
21
would not itself have sufficed. However, as explained, the Reporter's decision and reasons
properly addressed the public sector equality duty and can be relied upon for that purpose
by the respondent and the Scottish Ministers. Rather than failing to give proper, adequate
and intelligible reasons for the decision to adopt the amended Core Path Plan, they plainly
did so by accepting and adopting the Reporter's decision and reasons.
Disposal
[42]
I shall therefore sustain pleas-in-law 5, 7 and 9 for the respondent, and
pleas-in-law 3, 4, 5 and 6 for the interested party, and I shall refuse the petition, reserving in
the meantime all questions of expenses.
