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Cains Trustees (Jersey) LTD and another for Judicial Review of a decision of the Highland Council (Court of Session) [2024] CSOH 80 (09 August 2024)
URL: http://www.bailii.org/scot/cases/ScotCS/2024/2024csoh80.html
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[2024] CSOH 80
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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 80
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: Burnet KC; Burness Paull LLP
Respondent: J Findlay KC, Colquhoun; Harper Macleod LLP
9 August 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. I previously repelled the
respondent's pleas that the petition was incompetent or premature: [2024] CSOH 50.
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.
2
The respondent is the Highland Council. On 28 August 2023 its City of Inverness Area
Committee resolved that officers should proceed to finalise a particular 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 by 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 pursued an improper purpose.
Petitioners' submissions
[4]
Senior counsel for the petitioners asked the court to reduce the decisions of the
respondent complained of. Academy Street was one of the major shopping streets in
Inverness city centre, and a major vehicular route for traffic to access and pass through the
city centre. The key question for the court was whether the respondent had acted
3
unlawfully by deciding when it did and on the basis of the information before it to exclude
the option it had previously consulted upon ("Option A"), or any other alternatives, from
the consultation process and to proceed with finalising only the current proposal
("Option B") and to consult on a Traffic Regulation Order ("TRO") in relation to that
proposal alone. The petitioners maintained that the consultation process was unlawful for
the following reasons. The respondent consulted on Option A. Option B was a
fundamentally different proposal inter alia because it prevented private vehicles from
accessing and travelling through the city centre and was likely to change traffic patterns
within the city and to have a different economic impact on the city centre. The respondent
took the decision to proceed with Option B, which became the current proposal, and to
exclude Option A from further consultation, at an early stage of the consultation process and
before any traffic or economic impact assessments had been carried out. It did not afford the
public meaningful consultation or the opportunity to make sensible representations. It had
not carried out an overall comparative assessment of the proposals with an open mind and
in a fair manner.
[5]
The key facts relied upon by the petitioners were as follows. On 26 August 2021, the
respondent's Area Committee resolved to retain a Covid-19 era "Spaces for People"
intervention in Academy Street. In May 2022, the respondent launched a public
consultation: "Places for Everyone - Academy Street". It did not indicate that there was any
intention to prevent the use of Academy Street as a through route for private vehicles. At no
time at any of the meetings held during the consultation prior to November 2022 had there
been any discussion of restricting access to and excluding cars from Academy Street. The
public was not given any information about any proposed restriction of vehicular traffic on
Academy Street and its potential effects on local traffic into and through the city centre, or
4
on the local economy, when the proposals were first put out for consultation in August 2022.
Option B was only made known to the public when its import was published in a report to
the respondent's Inverness Area Committee ten days before its November 2022 meeting.
At that meeting on 24 November 2022, the Area Committee resolved inter alia for:
"officers to proceed with the design development of Option B outlined in Section 8 of
the November Committee Report, ensuring the best opportunity to attract external
construction funding by promoting an ambitious vision for the city centre".
Option B was an alternative design that had not been part of the consultation exercise. The
report to the November committee had said that the introduction of Option B was due to
feedback received from the public about the perceived lack of benefits for active travel in the
previous option, and as a result of feedback from the administrator of the source of the
proposed funding for the proposals, Sustrans, about the limited potential for that option to
be eligible for funding. That had been the genesis of the shift from Option A to Option B
and thence to the current proposal. It had been specifically noted in the report that the
availability of construction funding from the Scottish Government's "Places for Everyone"
fund required the design of the street to be compliant with "Cycling by Design" guidelines,
and that that involved reducing motorised vehicle volumes to below 2000 vehicles per day
from the current typical volumes of 8,500 to 9,500 vehicles per day. The report further noted
the results of the consultation exercise to October 2022 (ie on Option A) and stated that 68%
of respondents viewed those proposals as positive, mostly positive or neutral, while 32%
considered that more radical changes were needed for Academy Street. Both Option B and
its iteration in the current proposal prevented private vehicles from the west of the city
accessing the east of the city centre via Academy Street, and vice versa. The respondent had
not assessed the economic or traffic impact of any proposal on the city centre or the wider
area. The economic and traffic assessments and further consultation proposed by it were
5
restricted to assessing the current proposal only and the details of any TRO in relation to it.
It did not know what the likely economic or traffic effects of Option A, Option B or the
current proposal were likely to be.
[6]
Since November 2022, the respondent had not taken Option A into account as a
proposal for Academy Street, or carried out any further assessment of its benefits or
disadvantages. It would not consider the benefits or disadvantages of the current proposal
against those of Option A. It would not carry out an overall assessment of options,
including their economic and traffic impact, as part of its further consultation and final
decision. It had made it clear in its response to the petition that the "optioneering process
for the proposals has already been completed and consulted on". It averred that "Option A
was superseded by Option B, and thereafter by the Current Proposal." The material
difference between Option A and Option B was evident from the report to the November
committee meeting:
"Option A looks at improving the public realm, widened footpaths and the provision
of alternate cycle routes away from Academy Street. Option B is focused on reducing
traffic volumes to enable cyclists to remain on Academy Street."
The local Business Improvement District group had provided the respondent with results
from a survey of its members carried out at the end of 2022 and the beginning of 2023 on the
proposal that had been by then put forward. The survey showed that there was grave
concern from businesses about the respondent's revised proposal and the emergence of
Option B as the preferred option without proper consultation.
[7]
The report for the Area Committee's meeting on 28 August 2023 had asked it to note
the Option B design progress and agree that officers should proceed with its finalisation and
with consultation on a TRO, including appropriate equalities and economic impact
assessments, or else agree that work on the design should be stopped, the existing Covid-19
6
era bollards removed, and the carriageway of Academy Street reinstated to its original
width. It was noted that the committee meeting on 24 November 2022 had agreed to instruct
officers to proceed with the design development of Option B and to continue with public
consultation on the development of that option, that potential traffic management measures
to implement that decision had subsequently been identified, but that a series of negative
responses from parts of the business community had been raised in the media and to the
respondent directly, resulting in the design put before the August 2023 meeting, which
involved Academy Street not being available as a through-route for private vehicles. It
narrated community engagement which had taken place in the June to August 2023 period,
and concluded by stating that the design which had been developed to date met the
scheme's objectives and had the potential to attract Scottish Government funding, whereas
no other design solution identified or suggested could do so, and that accordingly if the
committee should decide not to agree to proceed with finalising the proposed design, the
alternative would be to stop work and revert to the pre-Covid-19 situation. The Area
Committee had accepted the recommendation to proceed with finalisation of the developed
design and with consultation on a TRO, and the respondent as a whole had adopted that
decision by a majority of 35 to 33, with two abstentions, at its meeting on 14 September 2023.
Those councillors who had taken the decisions at the respondent's meetings on 28 August
2023 and 14 September 2023 were not provided with any economic or traffic impact
assessments of the alternative proposals but the meeting of 28 August did consider the
availability of external funding as a supposedly determining issue in the decisions taken.
[8]
Counsel referred to maps showing the routes which traffic might have to take should
Academy Street be closed to private vehicles in order to arrive at the Eastgate Shopping
7
Centre or Raigmore Hospital from various areas in Inverness, which showed significantly
increased journey times and distances.
[9]
Turning to the law on the duty to consult, a public authority's duty to do so could
arise in a variety of ways. In the absence of an express statutory duty, it was frequently
generated by the common law duty to act fairly. What amounted to fairness in this context
was often illumined by the doctrine of legitimate expectations. In R (Moseley) v Haringey
London Borough Council
"[23] A public authority's duty to consult those interested before taking a decision
can arise in a variety of ways. Most commonly, as here, the duty is generated by
statute. Not infrequently, however, it is generated by the duty cast by the common
law upon a public authority to act fairly. The search for the demands of fairness in
this context is often illumined by the doctrine of legitimate expectation; such was the
source, for example, of its duty to consult the residents of a care home for the elderly
before deciding whether to close it in R v Devon County Council, Ex p Baker
[1995] 1 All ER 73. But irrespective of how the duty to consult has been generated, that same
common law duty of procedural fairness will inform the manner in which the
consultation should be conducted.
[24] Fairness is a protean concept, not susceptible of much generalised enlargement.
But its requirements in this context must be linked to the purposes of consultation.
In R (Osborn) v Parole Board [2014] AC 1115, this court addressed the common law
duty of procedural fairness in the determination of a person's legal rights.
Nevertheless the first two of the purposes of procedural fairness in that somewhat
different context, identified by Lord Reed JSC in paras 67 and 68 of his judgment,
equally underlie the requirement that a consultation should be fair. First, the
requirement `is liable to result in better decisions, by ensuring that the decision-
maker receives all relevant information and that it is properly tested': para 67.
Second, it avoids `the sense of injustice which the person who is the subject of the
decision will otherwise feel': para 68. Such are two valuable practical consequences
of fair consultation. But underlying it is also a third purpose, reflective of the
democratic principle at the heart of our society. This third purpose is particularly
relevant in a case like the present, in which the question was not: `Yes or no, should
we close this particular care home, this particular school etc?' It was: `Required, as
we are, to make a taxation-related scheme for application to all the inhabitants of our
borough, should we make one in the terms which we here propose?'
[25] In R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168 Hodgson J
quashed Brent's decision to close two schools on the ground that the manner of its
prior consultation, particularly with the parents, had been unlawful. He said, at
p 189: `Mr Sedley submits that these basic requirements are essential if the
8
consultation process is to have a sensible content. First, that consultation must be at
a time when proposals are still at a formative stage. Second, that the proposer must
give sufficient reasons for any proposal to permit of intelligent consideration and
response. Third . . . that adequate time must be given for consideration and response
and, finally, fourth, that the product of consultation must be conscientiously taken
into account in finalising any statutory proposals.' Clearly Hodgson J accepted
Mr Stephen Sedley QC's submission. It is hard to see how any of his four suggested
requirements could be rejected or indeed improved. The Court of Appeal expressly
and then in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213,
para 108. In Ex p Coughlan, which concerned the closure of a home for the disabled,
the Court of Appeal, in a judgment delivered by Lord Woolf MR, elaborated, at
para 112: `It has to be remembered that consultation is not litigation: the consulting
authority is not required to publicise every submission it receives or (absent some
statutory obligation) to disclose all its advice. Its obligation is to let those who have a
potential interest in the subject matter know in clear terms what the proposal is and
exactly why it is under positive consideration, telling them enough (which may be a
good deal) to enable them to make an intelligent response. The obligation, although
it may be quite onerous, goes no further than this.' The time has come for this court
also to endorse the Sedley criteria. They are, as the Court of Appeal said in R (Royal
Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts
...
[27] Sometimes, particularly when statute does not limit the subject of the requisite
consultation to the preferred option, fairness will require that interested persons be
consulted not only upon the preferred option but also upon arguable yet discarded
alternative options. For example, in R (Medway Council) v Secretary of State for
Transport, Local Government and the Regions [2003] JPL 583, the court held that, in
consulting about an increase in airport capacity in South East England, the
Government had acted unlawfully in consulting upon possible development only at
Heathrow, Stansted and the Thames estuary and not also at Gatwick; and see also
R (Montpeliers and Trevors Association) v Westminster City Council [2006] LGR 304,
para 29.
[28] But, even when the subject of the requisite consultation is limited to the
preferred option, fairness may nevertheless require passing reference to be made to
arguable yet discarded alternative options. In Nichol v Gateshead Metropolitan Borough
Council (1988) 87 LGR 435 Gateshead, confronted by a falling birth rate and therefore
an inability to sustain a viable sixth form in all its secondary schools, decided to set
up sixth form colleges instead. Local parents failed to establish that Gateshead's
prior consultation had been unlawful. The Court of Appeal held that Gateshead had
made clear what the other options were: see pp 455, 456 and 462. In the Royal
Brompton case 126 BMLR 134, cited above, the defendant, an advisory body, was
minded to advise that only two London hospitals should provide paediatric cardiac
surgical services, namely Guys and Great Ormond Street. In the Court of Appeal the
9
Royal Brompton Hospital failed to establish that the defendant's exercise in
consultation upon its prospective advice was unlawful. In its judgment delivered by
Arden LJ, the court, at para 10, cited the Gateshead case as authority for the
proposition that `a decision-maker may properly decide to present his preferred
options in the consultation document, provided it is clear what the other options are .
. .' It held, at para 95, that the defendant had made clear to those consulted that they
were at liberty to press the case for the Royal Brompton."
[10]
Reference was also made to McHattie v South Ayrshire Council
2020 SLT 399 at [40]. A consultation procedure, if it was to be as full and fair as it ought to
be, took considerable time and meanwhile the underlying facts and projections were
changing all the time. It was not just a question of an iterative process which could speedily
be run through a computer: R v Shropshire Health Authority ex p Duffus [1990] 1 Med LR 119,
per Schiemann J at page 223. Consultation might be phased and carried out in stages and
the public authority might take a preliminary or provisional decision, or decision in general
principle, or express a preference for a particular option or proposal at the end of each stage.
However, any such decision could not restrict discussion during the later stages to that
proposal or preclude from discussion anything other than that proposal. The consultee had
to be able to give the proposals meaningful consideration and make a meaningful response:
R (on the application of Parents for Legal Action Ltd) v Northumberland County Council
there was a fundamental difference between the proposals consulted on and those which the
consulting party subsequently wished to adopt: R (Smith) v East Kent Hospital NHS
[11]
Applying those legal principles to the facts of the present case, the respondent chose
to consult the public on its proposals to redesign Academy Street. Having chosen to do so, it
was required to consult fairly. As stated in Moseley, the requirement for fairness was linked
to the purposes of consultation. The respondent was not carrying out a single "iterative"
10
and "continuing" process which would be completed on the conclusion of the consultation
on the TRO. Since November 2023 it had not considered Option A or taken it into account.
It accepted that it took the decision in September 2023 to proceed with the current proposal,
and that the TRO process could not consider more than one proposal. It would only be
considering the benefits and disadvantages of the current proposal in the context of whether
or not to adopt a TRO. It was unclear how any modification of that proposal could now take
place, or what it might amount to. The respondent decided not to consider Option A any
further in November 2022, and to proceed with the current proposal in September 2023,
without having carried out any traffic impact assessment or economic impact assessment in
relation to either proposal. It was in the process of carrying out a traffic impact assessment
and economic impact assessment of the current proposal as part of the TRO process.
[12]
At best for it, the respondent had carried out a phased consultation. That was lawful,
but there had to be an opportunity to consider matters in the round at the final stage of the
consultation. In this case that would involve the public and elected members being able to
consider Option A, Option B and the current proposal and their relative benefits and
disadvantages at the same time. The respondent should not have prevented further
consideration of Option A as an alternative proposal. That was a breach of its common law
duty to consult fairly.
[13]
The respondent originally consulted on Option A. Option B and the current
proposal were not part of the original consultation. Option B and the current proposal were
fundamentally different to Option A. Whether something was a fundamental change was
"to some extent...one of impression": Legg v Inner London Education Authority [1972]
1 WLR 1245 per Megarry J at 1257. Option B and the current proposal were likely to have a
significant effect on the public's access to and through Inverness city centre, and its patterns
11
of use of the city centre. Option A did not prevent private vehicles from travelling from one
end of Academy Street to the other. Both Option B and the current proposal prevented
private vehicles from the west of the city accessing the east of the city centre via Academy
Street, and vice versa. Instead, private vehicles wishing to access the east of the city centre
from the west of the city would be likely to have two options: (i) a two and a half mile
detour via Millburn Roundabout, or (ii) a one and a half mile detour via the Crown
residential area. Option A was likely to have materially different economic and traffic
impacts to that of Option B and the current proposal. The fundamental difference between
the proposals was also evident from the reaction of members of the Area Committee and
members of the public to the emergence of Option B in November 2022. Option B was not a
refinement of Option A. It was an alternative and Option A should not have been excluded
from the consultation. That was unlawful: Moseley. At no time prior to 28 August or
14 September 2023 had the public been consulted on Option A and Option B or the current
proposal as alternatives. The respondent failed to provide the public with any information
on the relative merits of those alternatives, including their impact on businesses and the
local economy and traffic. Renewed consultation was required where there was "a
fundamental difference between the proposals consulted on and those which the consulting
party subsequently wishes to adopt": Smith. Whether or not the respondent had concluded
that Option A was unlikely to be appropriate, or that the retention of Option A was not
required in order for consultees to express meaningful views regarding Option B, in the
circumstances it was unfair to exclude Option A from further consideration. The respondent
was entitled to take a preliminary decision, or decision in general principle, and express a
preference for a particular option. However, any such decision should not have restricted
discussion during the later stages to that proposal or preclude from discussion anything
12
other than that proposal: Parents for Legal Action. That is precisely what the respondent did.
The respondent was only considering the current proposal. It would not carry out any final
overall assessment of the benefits and disadvantages of the current proposal against those of
Option A. Any further consultation on an alternative proposal would be limited to
modifying the current proposal. It would not involve any broader reconsideration of the
proposals. Any opportunity to submit further representations would therefore be extremely
limited in scope. There would be no meaningful consultation at the end of the process, and
no opportunity for the public to make sensible representations. The petitioners' sense of
injustice was entirely understandable and justified.
[14]
The law relating to material considerations provided that a decision-maker would err
in law if it failed to take into account a material consideration. The tests to be applied in
deciding whether or not a consideration was material and so ought to have been taken into
account by a decision-maker were set out in Bolton Metropolitan Borough Council v
SSE (1990) 61 P&CR 343 per Glidewell LJ at page 352. The decision-maker ought to take into
account a matter which might cause him to reach a different conclusion to that which he
would reach if he did not take it into account. The verb "might" meant a real possibility.
If a matter was trivial or of small importance in relation to the particular decision, so that it
would make no difference to the decision, it was not something that required to be taken
into account. There was a distinction between matters that a decision-maker was obliged by
statute to take into account and those where the obligation to take into account was to be
implied from the nature of the decision and of the matter in question. If the validity of a
decision was challenged on the ground that the decision-maker failed to take into account a
matter that might have caused him to reach a different decision, it was for the court to
decide whether it was a matter which he should have taken into account. If the court
13
concluded that the matter was fundamental to the decision, or that it was clear that there
was a real possibility that the consideration of the matter would have made a difference to
the decision, it was entitled to hold that the decision was not validly made. But if the court
was uncertain whether the matter would have had that effect or was of such importance in
the decision-making process, then it did not have before it the necessary material to
conclude that the decision was invalid. Even if the court did conclude that it could hold the
decision to be invalid, it was entitled nevertheless, in exceptional circumstances, and in the
exercise of its discretion, not to grant any relief.
[15]
Applying those principles to the facts of the present case, the economic impact of the
current proposal and its impact on businesses was a material consideration which the
respondent should have taken into account before deciding to proceed with the current
proposal. Despite the report to the November committee meeting having identified the
potential for impacts and concerns from affected businesses and other stakeholders as a risk
of proceeding with Option B at the time, no economic impact assessment had been carried
out. There was a clear requirement for this assessment to be produced as part of a proper
and adequate consultation on the proposals for Academy Street, so that the public and
members of the Area Committee could properly understand the economic impact. The Area
Committee agreed to carry out an economic impact assessment at the November committee
meeting. However, this should have taken place in the initial stages of the consultation
process, in respect of each design which had been progressed, so as to inform the opinions of
the public and the respondent's decision making. Carrying it out as part of a TRO process,
which would not consider alternative options, did not cure the unlawfulness of the
respondent's decision; on the contrary, the decision to undertake an economic assessment at
such a late stage in proceedings was a tacit admission on the part of the respondent that its
14
failure to do so until that point was a fundamental failure in the consultation process. The
assumption that business interests had been given fair and proper consideration throughout
the consultation process was wholly inaccurate. The respondent had ignored comments
from businesses and failed to properly take account of their concerns, which were a material
consideration. There was a very real possibility that the respondent would have reached a
different decision if it had taken these matters into account. That failure would not be cured
by the economic impact assessment and consultation as part of the TRO process. That
process and any further decision would only consider the question of whether to adopt the
TRO based on the current proposal. It would not reconsider the question of whether or not
to proceed with the current proposal as opposed to alternatives. There was no suggestion
that the respondent would properly reconsider the principle of the current proposal as its
chosen design.
[16]
The legal approach to be taken to challenges based on the content of a planning
officer's report was summarised in Edinburgh Crematorium Limited v East Lothian Council v
Crematoria Management Limited [2022] CSOH 79 per Lord Richardson at [84]. Such reports
were not to be read with undue rigour, but with reasonable benevolence, and bearing in
mind that they were written for councillors with local knowledge: Mansell v Tonbridge and
officers required to keep in mind the test imposed by Parliament in terms of sections 25(1)
and 37(2) of the Town and Country Planning (Scotland) Act 1997 as to the information and
advice provided and the manner in which it was to be provided: R v Selby District Council,
ex parte Oxton Farms [2017] PTSR 1103 at page 1110. The question for the court would
always be whether, on a fair reading of the report as a whole, the officer had materially
misled the members on a matter bearing upon their decision, and the error had gone
15
uncorrected before the decision was made. Minor or inconsequential errors might be
excused. Unless there was evidence to suggest otherwise, it might reasonably be assumed
that, if the members followed the officer's recommendation, they did so on the basis of the
advice that he or she gave: Mansell at [42(2)].
[17]
Applying those principles to the facts of the present case, the reports to the Area
Committee in August 2023 and the full council in September 2023 misled those bodies as to
the level of support for the current proposal. According to the report to the August
committee meeting, since the consultation website first went live in May 2022, the total
traffic to the site to 8 August was: 9032 visitors, 598 respondents, 1422 contributions (of
which 894 were made in the form of comments and 528 expressed as agreements), and
633 new subscribers. In terms of contributions sentiment based on the 894 comments:
239 were positive, 132 mostly positive, 157 negative, 66 mostly negative, and 83 neutral.
However, in presenting these figures, the August Committee Report had failed to take into
account that Option B had not been raised as a potential design option until November 2022;
that in March 2023, Option B became the current proposal, with discussions on this with
businesses not held until 14 to 16 March 2023; and that detailed plans for the current
proposal, and a request for comments on them, were not published until 20 July 2023.
Therefore, of the total activity gathered over the consultation period (May 2022 to 8 August
2023), the majority of engagement - 6903 of 9032 visitors, 521 of the 598 respondents and
1253 of the 1422 contributions - related to the period during which Option A was subject to
consultation. Only 12% of the total contributions received related to the period during
which Option B was under consideration (ie March August 2023). By taking account of the
consultation responses throughout the entire period May 2022 August 2023, the report to
the August committee had conflated comments received for Option A and the current
16
proposal and materially and erroneously overstated the level of public support for the
current proposal.
[18]
That was a material issue which committee members and councillors might have
considered in reaching the decision. Members were materially misled on a matter bearing
upon their decision, which could not be described as minor or inconsequential.
[19]
The law on predetermination provided that a decision-maker was entitled to be
predisposed to a particular course of action or policy position, but must not predetermine
matters. The test was whether there was an appearance of predetermination in the sense of a
mind closed to the merits of the decision in question: Packard, Petitioner [2011] CSOH 93
at [64], where Lord McEwan had referred with approbation to the observations in R (Lewis) v
Redcar and Cleveland Borough Council
"[95] The requirement made of such decision makers is not, it seems to me, to be
impartial but to address the planning issues before them fairly and on their merits,
even though they may approach them with a predisposition in favour of one side of
the argument or the other. It is noticeable that in the present case no complaint is
raised by reference to the merits of the planning issues. The complaint, on the
contrary, is essentially as to the timing of the decision in the context of some diffuse
allegations of political controversy.
[96] So the test would be whether there is an appearance of predetermination in the
sense of a mind closed to the planning merits of the decision in question. Evidence
of political affiliation or of the adoption of policies towards a planning proposal will
not for these purposes by itself amount to an appearance of the real possibility of
predetermination or what counts as bias for these purposes. Something more is
require
d, something which goes to the appearance of a predetermined, closed mind
in the decision-making itself. I think that Collins J put it well in R (Island Farm
Development Ltd) v Bridgend County Borough Council [2007] LGR 60 when he said, at
paras 31--32:
`31. The reality is that councillors must be trusted to abide by the rules which
the law lays down, namely that, whatever their views, they must approach
their decision-making with an open mind in the sense that they must have
regard to all material considerations and be prepared to change their views if
persuaded that they should . . . unless there is positive evidence to show that
there was indeed a closed mind, I do not think that prior observations or
17
apparent favouring of a particular decision will suffice to persuade a court to
quash the decision.
32. It may be that, assuming the Porter v Magill test is applicable, the fair-
minded and informed observer must be taken to appreciate that
predisposition is not predetermination and that councillors can be assumed to
be aware of their obligations.'"
and per Longmore LJ:
"[109]
... the test of apparent bias relating to predetermination is an
extremely difficult test to satisfy. This case ... comes nowhere near satisfying this test ... "
[20]
In Bouchti v London Borough of Enfield
observed:
"[98] In considering whether there was pre-determination such as to vitiate a
decision by elected councillors regard has to be had to their position as elected
representatives. As such they are expected and entitled to promote particular views;
to seek support for such views; to engage with the public; and to explain to
members of the public their stance on matters of public concern. In the light of those
aspects of the role of an elected councillor evidence that a particular councillor is pre-
disposed to support policies and proposals having certain effects is not sufficient to
demonstrate that a particular decision was made with a closed mind such as to
vitiate the decision. In short terms councillors will be elected to some extent on the
footing that they will approach issues of a particular kind from a certain pre-declared
standpoint and their electors will have chosen them because of their support for that
standpoint. For a decision made by an elected member to be vitiated by
pre-determination regard has to be had to the actual decision and not just to the
member's stance as to matters of that kind. It is necessary for the court to find at the
least a real risk that the member approached the decision in question not just with a
pre-disposition in favour of a particular course but with a determination to approve
the actual decision in question and with a mind closed to arguments to the contrary
in relation to that decision."
Applying those legal principles to the facts of the case, the respondent appeared to have
taken the decision to proceed with Option B, and then the current proposal, on the basis that
it considered that no other scheme would be eligible for funding through Sustrans. In doing
so it unlawfully predetermined matters. It made its mind up in November 2022 that it was
not going to proceed with a design which was unlikely to attract Sustrans funding, and that
any consultation on other options (including further consultation on Option A) was
18
immaterial and unnecessary. In doing so, it predetermined matters, pursued an improper
purpose and separately acted unfairly and irrationally. It had closed its mind to the
planning merits of the decision in question. The petitioners accepted that the availability of
funding was potentially a material consideration. However, it should have been taken into
account as part of an overall assessment of the options, including their economic impact.
The respondent was entitled to take that into account in explaining a preference for Option B
and the current proposal. However, it erred by relying on it to refuse to consider Option A
after November 2022. The respondent was entitled to be predisposed to Option B and the
current proposal. However, it had not at that point (and still had not) carried out any
assessment of the impact of Option B or the current proposal. It had predetermined matters
by refusing to consider Option A after November 2022 and by deciding to proceed with the
current proposal on the basis of the potential availability of Sustrans funding.
[21]
Alternatively, the respondent acted irrationally in placing significant weight on the
availability of funding for one option and excluding further consideration of another option
when it had not undertaken an economic impact assessment, nor assessed the prospects of
Option A attracting or generating finance, with a view to comparing the overall economic
effect of alternatives when the proposals were still at a formative stage. Statements made by
various councillors at the meetings in August and September 2023 demonstrated that they
regarded the availability of funding in and of itself as a key determining issue in their
decision.
Respondent's submissions
[22]
On behalf of the respondent, senior counsel submitted that, in order to begin the
TRO process, a local authority must first have prepared a draft TRO on which to consult. It
19
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 nature of
the TRO process served to limit public engagement where a local authority wished to seek
views as to what sort of TRO it should consider making in any given case. Accordingly, the
respondent had decided to undertake a pre-TRO consultative process in this case, which had
been referred to as "optioneering". The intention was to seek public engagement in
preparing a draft TRO for submission to more formal public consultation in accordance with
the applicable 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 respondents' overall TRO
process.
[23]
Matters relevant to the present dispute had commenced with a report to the
August 2021 meeting of the respondent's Inverness Area Committee. That report had raised
the question of how the city could be transformed, post-Covid, into a "vibrant", successful
place, which involved examining how transport could affect, positively or negatively, the
quality, safety and enjoyment of its streets. At a meeting in February 2021, the committee
had already agreed that officers should develop design options for permanent street changes
in Academy Street. The August committee meeting could not be regarded as having
produced any legitimate expectation of consultation on the matter.
[24]
By November 2022, officers were recommending to the Area Committee that it
should note the feedback from the consultation exercise which had by then taken place
20
relating to the ambition to improve the environment in Academy Street for all users, agree
that officers should proceed with the design development of what was then identified as
Option B (which was identified as ensuring the best opportunity to attract external
construction funding) and agree that public consultation on the development of Option B
should be continued. The differences between Options A and B, and their respective
advantages and disadvantages, had been clearly identified. It was noted that there was
broad support from the public consultation for reduced road space and increased space for
non-motorised users. The choice was how traffic should be allowed to move through the
city centre. At the November meeting of the Area Committee, the decision taken was clear
that officers should proceed with the design development of Option B, rather than Option A
(which was rejected), and should continue public consultation on that option. That that was
the decision taken had been made clear to the public. It was too late now to challenge what
had happened in November 2022. The question was whether, in carrying out a consultation
on Option B, it was necessary to maintain Option A in order to get a meaningful response.
It was not; Option A had been considered. Some consultees had indicated the view that it
did not go far enough, and it had other drawbacks identified in the report to the November
committee meeting. As part of a single ongoing process, consideration had passed to
Option B.
[25]
By the time of the report to the August 2023 committee meeting, all that was being
discussed was the design progress and finalisation, and consultation on the terms of a TRO.
The committee had been presented with a summary of public engagement from May 2022 to
August 2023. It had been noted that the RIBA design process which was being followed did
not require an economic impact assessment at any stage. That notwithstanding, one had
subsequently been carried out, and had been publicly available since June 2024. The
21
potential impact on business had been considered, as had impact on traffic and displacement
effects. The report had concluded that a careful balance had been struck between various
interests to reach a fair and reasonable compromise that would benefit the city centre as a
whole, and that was why the committee had been asked to approve finalisation of the
proposed design with any necessary minor amendments as required, and to consult on a
TRO. The alternative was to stop work altogether and revert to the pre-Covid-19 state of
Academy Street. The Area Committee's decision on 14 September accepted the
recommendation made by officers to finalise what had begun life as Option B.
[26]
Before any TRO could be adopted by the respondent, it would require to follow a
prescribed procedure which involved consulting with statutory consultees, publishing
details of the proposal, and considering any objections to it. It would be competent for the
petitioners (or anyone else) to object to a proposed TRO on the basis that an alternative
scheme (including Option A) would be preferable. Economic and traffic impact assessments
would be published along with the proposal itself. Having properly considered any
objections made, it would be open to the respondent either to make the TRO as proposed,
make it subject to appropriate modifications, re-start the TRO consultation process with a
modified proposal, or decline to make the proposed TRO.
[27]
There did not appear to be any substantive difference between the parties in relation
to the content of the applicable law. The common law imposed a general duty of procedural
fairness on public authorities when making decisions which affected the interests of
members of the public. There was, however, no general common law duty to consult
persons who might be affected by an order before it is adopted: Moseley. A duty to consult
would exist where a statute (or statutory instrument) provided for it - as in Moseley - or
where there was a legitimate expectation that one would be carried out, as acknowledged by
22
Lord Reed JSC in that case at [35]. A public authority might, however, choose to carry out a
public consultation where it felt it would be appropriate to do so. The purpose of such a
consultation was set by the authority, and could not be enlarged by consultees such as the
petitioners. When a public authority carried out a consultation (whether because it was
obliged to do so, or because it chose to do so), it had to act fairly. The principles commonly
referred to as the Sedley Requirements would apply (Moseley at [25]), but the basic
requirement was one of fairness. The application of the Sedley Requirements, and the
determination of what fairness required in any given case, needed consideration of the
overall context in which the consultation was being carried out: Bouchti at [68] - [69]. There
was no general duty to provide information about options which had been rejected, and a
public authority would only be required to provide information about them if the provision
of such information was necessary in order for consultees to express meaningful views on
the proposal: Moseley, per Lord Reed at [40]. Where a challenge was made to a decision on
the basis of failures in the consultation process, the question for the court was whether the
consultation process was "so unfair it was unlawful": R (on the application of Greenpeace
Ltd) v Secretary of State for Trade and Industry
at [62] - [63]. In determining a judicial review, the court was concerned with the legality of
the decision-making process and not with the merits of a decision. Matters of judgment
were within the exclusive province of the decision-maker. The court would only interfere
with a decision if it was ultra vires: Wordie Property Co Ltd v Secretary of State for Scotland 1984
SLT 345. It was for the decision-maker to decide what the determining issues were, the
evidence that was material to those determining issues, and the conclusions to be drawn
from the evidence. It was for the decision-maker, applying its expertise and judgment, to
23
resolve the determining issues: Moray Council v Scottish Ministers
2006 SC 691 at [29] - [30].
[28]
A material consideration was one which was relevant to the decision-making
process. If the court concluded that a matter was left out of account, and that it was
fundamental to the decision or that there is a real possibility that consideration of the matter
would have made a difference to the decision, it might hold that the decision was not validly
made. If the court was uncertain about whether the matter would have had this effect, or
was of such importance in the decision-making process, then it did not have the material
necessary to conclude that the decision was invalid: Bolton.
[29]
The petitioners' first ground of challenge rested upon a misconstrual of the purpose
of the consultation process begun in May 2022. Whilst it was not denied that the Sedley
Requirements applied in principle to the optioneering process, the precise application of
those requirements to the process required a proper and informed consideration of the
context: Bouchti (supra). The ultimate issue was the fairness of the consultation process, and
what fairness required in any given case was highly contextual: R v Home Secretary, ex parte
follows, especially sub-paragraphs (2) and (3):
"What does fairness require in the present case? My Lords, I think it unnecessary to
refer by name or to quote from, any of the often-cited authorities in which the courts
have explained what is essentially an intuitive judgment. They are far too well
known. From them, I derive that (1) where an Act of Parliament confers an
administrative power there is a presumption that it will be exercised in a manner
which is fair in all the circumstances. (2) The standards of fairness are not
immutable. They may change with the passage of time, both in the general and in
their application to decisions of a particular type. (3) The principles of fairness are
not to be applied by rote identically in every situation. What fairness demands is
dependent on the context of the decision, and this is to be taken into account in all its
aspects. (4) An essential feature of the context is the statute which creates the
discretion, as regards both its language and the shape of the legal and administrative
system within which the decision is taken. (5) Fairness will very often require that a
24
person who may be adversely affected by the decision will have an opportunity to
make representations on his own behalf either before the decision is taken with a
view to producing a favourable result; or after it is taken, with a view to procuring
its modification; or both. (6) Since the person affected usually cannot make
worthwhile representations without knowing what factors may weigh against his
interests fairness will very often require that he is informed of the gist of the case
which he has to answer."
The purpose of optioneering was not to present a single well-formed proposal for the
consideration of members of the public; instead, it formed part of an overall process with
the ultimate objective of making a TRO, which would then be the subject of further and
formal consultation. The result of the optioneering was merely a decision to move to the
next stage of the process, rather than to take any substantive action; unless a TRO was
eventually made by the respondent, there would be no actual outcome of the optioneering
which could be challenged. The current proposal would be consulted upon fully by the
respondent, as required in terms of the TRO Regulations. The proposals were still at a
formative stage, insofar as changes might yet be made by the respondent in the light of
objections which might be made by members of the public, including the petitioners. There
would be sufficient information for the petitioners to give intelligent consideration to the
current proposal. There would be adequate time for consideration and response. Any
objections to the current proposal would be considered fully, again as required by the TRO
Regulations.
[30]
In any event, the respondent was complying with the Sedley Requirements, and had
so complied in so far as relevant at every stage, in particular before taking the decisions it
did in August and September 2023. There was a period of nine months between the
November 2022 committee meeting and the August 2023 committee meeting. Conscientious
consideration had been given to the results of that consultation, and would continue to be so
given. What was being consulted upon after November 2022 was the development of
25
Option B only. Sufficient information was provided to allow for consultees to give
intelligent consideration to Option B. The respondent could lawfully have decided to stop
all consultation in November 2022. It was not for the petitioners to insist that a voluntary
consultation in relation to Option A should continue; the respondent's decision not to
continue with that consultation was lawful, and there had been nothing unfair about the
consultation which had been carried out between November 2022 and September 2023. The
input of the business community on Option B had been considered. There was no need
grounded in fairness for Option A to remain on the table in order for comment on Option B
to be meaningful.
[31]
It was not disputed that the impact of the proposed TRO on businesses was a
material consideration which the respondent would require to take into account when
making the TRO. However, the appropriate moment for taking that material consideration
into account was when the respondent was considering whether to make the proposed TRO
or not. Economic impact and traffic impact assessments were being carried out by the
respondent and it was intended that they should be available before the TRO proposal was
submitted to public consultation, so as to inform the members of the public about the
potential impacts of the proposal. Members of the public would be in a position to state
objections to the proposed TRO on the basis of disagreement with the assessments, and the
respondent would be under a statutory obligation to take those objections into account. The
impact assessments would, in addition, be available to the respondents when a final decision
was made. The suggestion by the petitioners that full impact assessments should have been
carried out before a decision to commence the TRO statutory process was quite impractical,
and failed to take account of the purpose of the optioneering which took place between
May 2022 and August 2023. It was intended to produce a single proposal which could then
26
be fully consulted on and assessed in a formal TRO process; in other words, it was designed
for the examination and refinement of options. To require full impact assessments at every
stage would have introduced delay and expense, and would have undermined the purpose
of optioneering. Nor was it obvious that the mere decision to move to the next stage in the
TRO process could have an impact on businesses or traffic in Inverness; only the actual
imposition of a TRO would have such impacts, and the respondent would have the relevant
information available to it before that decision was made. Optioneering was an early stage
of an overall process with the goal of producing a sensible and appropriate TRO.
Accordingly, the question of whether or not the respondent had had regard to all material
considerations was one which could not be answered at this stage. In any event, the
respondent had undertaken extensive and adequate engagement with businesses and
stakeholders in Inverness, and would continue to do so. The responses of businesses formed
part of the reasoning behind the move from Option B to the current proposal, and would be
taken into consideration before any TRO was made. So far as the decisions under challenge
were concerned, there was no failure to have regard to material considerations that were
material and relevant at the time those decisions were made.
[32]
As to the suggestion that the Area Committee and the respondent itself had been
misled by planning officers, that misconstrued the place of optioneering in the overall TRO
process. Its purpose was to produce a single proposal which could then be consulted upon
in detail. Matters relevant to the process included the practicability of proposals, the level of
funding required (and available), and the respondent's broader desired outcomes for
Academy Street. Public support for the proposal would be properly gauged by the
responses to the public consultation carried out in terms of the TRO Regulations. The level
of support for the proposal would be available for the respondent to consider when deciding
27
whether or not to make a TRO, and if so in what form. Further, it was not accepted that
anything in the reports to the Area Committee had been materially misleading. On the
contrary, they had set out the position fairly.
[33]
The suggestion that the respondent had predetermined the decision it had to make
was based on a mis-characterisation of the respondent's reasons for moving on from
Option A in late 2022. That option suffered from a number of difficulties which rendered it
less than ideal; these included the need to negotiate with private landowners and the
difficulty of installing a segregated cycle lane. In addition, the respondent concluded that it
would be unlikely to meet the desired objectives of the scheme. In any event, the availability
of funding was a highly material consideration in the case. The respondent could not put in
place schemes for which there was no funding available: ultimately, Option A would have
had no realistic chance of being put in place even if the respondent considered it an
appropriate proposal. The reasons for that had been expressed openly, not concealed at all.
The fact that the petitioners might prefer Option A to Option B or the current proposal had
little bearing on the practicality of putting it in place.
[34]
None of the grounds of challenge was well-founded, and the court should refuse to
grant any of the orders sought.
Decision
Fairness of consultation
[35]
Although the consultation process in this case was voluntarily instituted by the
respondent, there can be no doubt in law that it was subject to a requirement to be
procedurally fair: R (Medway Council) v Secretary of State for Transport
28
at [45]; R (Montpeliers and Trevors Association) v Westminster City Council
at least so far as the public was concerned, the respondent's "optioneering" exercise,
launched in May 2022, was a full and general consultation process intended to canvass the
views of residents, businesses and interested parties as to the future use and form of
Academy Street, as part of a wider post-Covid review of the role of the central area to which
it belongs in the life of the city, its inhabitants and visitors. Although counsel for the
respondent was astute - and correct - to point out that the nature and form of the
consultation could not be controlled by the petitioners or members of the public more
generally, it is equally true that that control does not entirely rest with the respondent; it
had to act within the requirements of procedural fairness, the arbiter of which is the court
alone - Medway at [32]. It follows that the respondent's apparent belief that the purpose of
the voluntary consultation exercise was simply to produce a single option for formal
consultation as part of the anticipated TRO process cannot in itself govern the question of
the fairness of that exercise.
[36]
Although fairness may be a protean concept in the sense that it is readily capable of
moulding itself to the exigencies of any specific situation, its requirements are not unduly
unpredictable. As a minimum, the Sedley principles (in sum, that consultation should take
place when proposals are at a formative stage, that sufficient information and reasons
should be provided to enable an intelligent consideration and response, that adequate time
be afforded for such a response, and that the results of the consultation should be
conscientiously evaluated and considered) apply. Beyond that, the reasons why
consultation is, as a general proposition, undertaken in the first place, as identified in
29
Moseley at [24], guide the incidents of fairness from case to case: that it produces better
decisions by ensuring that all relevant information is made available and tested before a
decision is made; that it avoids fostering a sense of injustice in those affected by the
decision; and that it aids the democratic process by assisting in determining not only
whether action should be taken but, if so, what that action should be.
[37]
Although much depends on how one analyses the facts of a consultation (Montpeliers
at [23]), on an objective analysis of the events of the consultation exercise in the present case,
the following observations may be made. During the initial stage of the exercise, until
November 2022, when Option A was being canvassed, there was no indication from the
respondent that any active consideration was being given to the possibility of Academy
Street being closed to through private traffic. Those participating in the consultation were
accordingly not invited or encouraged to comment on such a possibility. On the material
shown to me, the move away from Option A to Option B, which was very materially
different from Option A and which one might reasonably expect to raise a contrasting
pattern of comments, took place in November 2022 on the ground that the source of finance
from which it was hoped to draw the funds necessary to implement whatever scheme was
settled upon for Academy Street (ie Sustrans) would not be available to support Option A or
some variant thereof. From that point until August 2023, the focus was on the development
of Option B to the point of viability, and during that period the focus of consultation was on
it, with the result that consultees were no longer invited or encouraged to comment on
Option A. There was nothing inherently unfair in proceeding with what was, in effect, a
phased consultation for that period. The difficulty came in August and September 2023
when the respondent, faced by its officers with a stark choice between the developed
Option B and reverting to the pre-Covid situation, chose to move forward with the former as
30
the sole proposed scheme to be taken through the TRO process and into possible
implementation without affording any further opportunity for consultation on the
respective merits and disadvantages of Options A and B, or indeed on those of reverting to
the pre-Covid situation or maintaining for the meantime the "Spaces for People" measures
which had been taken during the pandemic. That choice was, accordingly, made against the
background that no effective representations could be made about Option A during the last
nine months or so of the overall consultation period, and that the respondent had disabled
itself from hearing in any consolidated manner the views of legitimately interested parties
on the respective merits and disadvantages of Option A, the developed Option B, the status
quo and reversion to the pre-Covid situation; cf. Montpeliers at [29]. Although it was
submitted to me that the opportunity for further comment on Option A, or indeed any other
idea, would be open during the statutory TRO consultation process which would now be
undertaken in connection with the developed Option B, the authorities are clear that a
consultation may well not be regarded as fair if it, in effect, relies on consultees arguing for
an option of potential central significance which the process to that point has already
excluded from further consideration: Medway at [30] and, especially, [32]; Montpeliers
at [27].
[38]
Testing the consultation process as a whole against the Sedley principles and the
indicators of unfairness derived from Moseley, it may be seen that, at the very least, the
sequence of events which transpired in the course of the consultation exercise failed to assist
the respondent not only to choose whether or not to take any action, but to select which
course of action it might most advantageously take; it was productive of a legitimate sense
of injustice on the part of the petitioners and, it may be, others in a similar position to them;
and insofar as reliance is placed on the TRO consultation exercise yet to come, is not taking
31
place at a point where proposals are in any meaningful way at a formative stage. While I
entirely absolve the respondent and its officers of any subjective intention to run a
substantively unfair consultation exercise, recognising that it may only be with the benefit of
hindsight that one can see where and how matters went awry, objectively viewed their
actions were calculated to, and did, produce a consultation which was unfair to and beyond
the point of unlawfulness. The respondent's decisions of 28 August and 14 September 2023
which are complained of were predicated on that unlawful consultation, and fall to be
reduced accordingly.
Material considerations
[39]
It is difficult, and ultimately unnecessary in this case, to attempt to disentangle the
question of whether material considerations were not taken into account by the respondent
in coming to its decisions in August and September 2023 from the question of the overall
adequacy of the consultation process. If one of the prime purposes of consultation is to
furnish a public authority with the information which it needs to make an appropriate
decision, then it might be thought axiomatic that there is at least a real possibility that an
inadequate consultation process may have led the authority to proceed without regard to
potentially material considerations which, although not quite the way in which the test for
the court's intervention was propounded in Bolton, approximates to it.
[40]
However, the particular criticism in this connection made by the petitioners was that
the decisions in August and September 2023 had been taken without the benefit of any
economic or traffic impact assessments of the competing options. Dealing with that matter
specifically, I consider that it was open to the respondent, without straying into the realm of
irrationality, to determine that such assessments were best carried out as part of the TRO
32
process - as they now have been - rather than at the stage of informing in the first instance
the proposal to be taken forward into that process. I would not, accordingly, have been
prepared to set aside the decisions complained of on this basis.
Planning officer's report
[41]
Approaching the officer's report to the meetings of August and September 2023 with
that degree of benevolence in construction which authority demands, I am unable to
conclude that its terms were materially misleading, or that they were in fact likely to have
misled those participating in the decisions which were made. Although, as must often be
the case in reports of various kinds to decision-making bodies, matters could, when viewed
in retrospect, have been more pointedly expressed than they were, the figures reported on
were not positively mis-stated, and the respondents' members must be taken to have had the
necessary background knowledge, at least if they chose to deploy it, to have been able to
determine their true significance. Any suggestion to the contrary falls to be regarded as too
speculative to amount to a valid ground of complaint. I reject this ground of challenge.
Predetermination
[42]
The question which falls to be asked in this connection is whether the circumstances
suggest that the respondent's collective mind was closed to the merits of the decision which
it was called upon to take in August 2023 and to confirm in the following month: Lewis;
Island Farm. The authorities recognise that that is a high hurdle to overcome. In the present
case, I find no positive evidence that the respondent's collective mind was closed. The
decision which it had taken in November 2022 may have predisposed the minds of certain
members towards a solution which was likely to obtain Sustrans funding, but that was not
33
an irrational position to adopt, and the suggestion that such a solution would have been
preferred by those members whatever its disadvantages or whatever the merits of any other
scheme that might have been laid before them is not made out on the material presented to
me. I reject this ground of challenge to the decisions of August and September 2023.
Disposal
[43]
I shall sustain the petitioners' first plea-in-law, repel their second plea and those of
the respondent, and reduce the decisions of the respondent dated 28 August and
14 September 2023 which are complained of.
