JUDGMENT SUMMARIES

Background

The respondent used the powers conferred on it by the Road Traffic Regulation Act 1984 (“the RTRA”) to make the Aberdeen City Council (Traffic Management) (Experimental) Order 2023 on 24 July 2023 (“the ETRO”).  An ETRO allows a local authority to introduce new traffic measures while simultaneously receiving feedback from the public and interested stakeholders on their effect.  This came into force on 1 August 2023 for 18 months.

The ETRO, which required some streets in the city centre to be reserved for bus, cycle and taxi use only, was strongly opposed by several stakeholders in the Aberdeen business community.

By a majority of 21 to 15, the recommendations of the respondent’s officers to make the ETRO permanent were accepted by the full sitting of the Council subject to a modification removing the prohibition on right turns from Union Terrace to Rosemount Viaduct.

In October 2024, officers notified the Urgent Business Committee that the modification was incompetent.  On 18 December the committee voted by a majority of 4 to 3 to remove the modification proposed while making the ETRO permanent. It was formally made permanent on 17 January 2025 and came into effect on 31 January 2025.

Mr Esslemont instructed his solicitors to write to the respondent contending that it could not convert the ETRO into a TRO unless it had obtained the consent of the Scottish Ministers.  He also submitted that the respondent’s decision to convert the ETRO into a TRO was outwith its powers.  The respondent did not agree.  This led to the appellant bringing this appeal. 

The appellant’s submissions

Mr Esslemont submitted that he had been substantially prejudiced by the failure to seek Scottish Ministers’ consent before making the TRO. The perceived risk of having to repay the grant funding was not relevant and making the TRO to avoid this was improper. The appellant further submitted that the respondent did not act fairly in balancing the relevant considerations and attached undue weight to the benefits of making the TRO. Further, the Chief Officer of strategic place planning had sought to influence a particular outcome and the respondent had attached no (or insufficient) weight to the evidence and representations on economic impact stemming from the decline in footfall.

The respondent’s submissions

Aberdeen City Council submitted that the appellant had failed to identify any substantial prejudice that he had suffered because consent had not been obtained from the Scottish Ministers. They further submitted that it remained possible to access the premises of these objectors, notwithstanding the restrictions of the TRO. Therefore, as all the premises the appellant relied on were unaffected by the TRO, the respondent did not require the consent of the Scottish Ministers.

The balancing of the various considerations as to whether to make the TRO was a matter for the respondent. The respondent had regard to the economic implications of the TRO and considered that it would promote business and the economy. The respondent had given cogent reasons in its email to objectors on 17 January 2025.

Decision

Under his first ground of challenge the appellant complains that the respondent failed to comply with a “relevant requirement” in relation to the TRO because it did not seek the consent of the Scottish Ministers.

The court considered that the appellant had demonstrated a genuine concern about the making of the TRO, and given the nature of the appellant’s involvement in leading the opposition to it, he could properly claim to have been substantially prejudiced by the alleged procedural failure to obtain the consent of the Scottish Ministers.

However, the appellant failed to show that access to any of the premises identified as relevant for the purposes of the appeal had been prevented.  It followed that there had been no failure on the part of the respondent to comply with a relevant requirement.  The first ground of appeal therefore failed.

The second ground of appeal concerned the appellant’s contention that it was unlawful for the respondent to take account of the possibility that grant funding might have to be repaid. 

The court decided that the respondent was entitled to have regard to the possibility that the grant funding might have to be repaid if the TRO was not made.  The second ground of appeal therefore failed.

Grounds 3 and 4 were also rejected. Based on the wide range of evidence before it, the respondent was entitled to conclude that the TRO would promote business and the local economy, support delivery of the Aberdeen City Centre Masterplan, contribute to regeneration of the city and maintain sufficient access for business and industry. This was entirely a matter for the respondent.

There was also no substance in the point taken by the appellant to the effect that the Chief Officer of Strategic Place Planning actively sought to weight the June 2024 consultation report in favour of the benefits of making the ETRO permanent in order to influence a particular outcome. 

As to the point that the ETRO was not truly experimental, this too was rejected.  The respondent explained the purpose of the ETRO when it came into force. 

Ground 5 challenged the adequacy of reasons given by the respondent.  The email sent to objectors explained that the decision to make the TRO was principally made at the meeting of the respondent on 11 October 2024. Separately, the respondent issued a statement of reasons to the public explaining why the TRO had been made and its effect.  Having regard to the totality of information made available to the objectors, the reasons for the respondent’s decision to make the TRO were adequately explained.

The court therefore found there was no merit in any of the grounds of appeal.  The appeal was accordingly refused.