Trustees of Inverness shopping centre allowed a challenge to plans to redesign street

About this case:

• Citation:
  [2024] CSOH 50
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

The trustees of the Eastgate Unit Trust, which owned a shopping centre at the east end of Academy Street in Inverness, argued that Highland Council had not indicated in its initial design proposals that there was an intention to restrict the use of private vehicles.

The petition was heard by Lord Sandison in the Outer House of the Court of Session. Burnett KC and A Sutherland, advocate, appeared for the petitioners and Crawford KC and Colquhoun, advocate, for the respondent.

Intermediate step

On 28 August 2023, the respondent’s City of Inverness Area Committee decided and resolved that officers should proceed to finalise a proposed design for Academy Street and consult on a relative Traffic Regulation Order. That decision was affirmed by a meeting of the full council on 14 September 2023. A non-statutory consultation on an earlier version of the proposal was previously held in May 2022, during which the petitioners averred it was not indicated that traffic on the street would be restricted.

Another design proposal was put forward in November 2022 which did involve restriction of vehicle access, of which the decisions under challenge in the petition were a variant. It was averred that there was a failure to carry out a proper consultation in respect of this proposal. It was the respondent’s position that the appropriate mode of challenge per paragraph 37 of Schedule 9 to the Road Traffic Act 1984 was a statutory appeal to the Inner House.

Since a TRO had not yet been made in this case, the respondent submitted that the petition was premature. The fact that the respondent had decided in 2023 to proceed to develop the current proposal did not in itself make any changes to traffic regulations on Academy Street. What the petitioners had done was challenge an intermediate step in an overall procedure.

For the petitioners it was submitted that the challenge did not concern the TRO process. The challenge was to the respondent’s decision to exclude the previous option and prefer the current proposal as its chosen design for Academy Street. The court should take a broad view of the justiciability of decisions, including “high policy” that would be plainly material to considerations in other decisions.

Need not be finalised

In his decision, Lord Sandison said of the competency of the petition: “As a straightforward matter of statutory construction, the respondent’s argument in this regard is unfounded. It is clear from the terms of paragraph 37 that what is excluded from the court’s supervision is something that can sensibly be described as an order to which the relevant part of the Schedule applies.”

He continued: “The paragraph equally makes it clear that the order in question need not be in finalised or approved form; a draft going through the statutory consultation process would qualify for its protection. In the present case, there no order of any kind in existence and paragraph 37 accordingly does not bite.”

On whether the petition was made prematurely, Lord Sandison said: “Properly viewed it does not seek to challenge any TRO; rather, what it challenges are decisions which, in the ordinary course of things, may reasonably be expected to affect the future design of Academy Street. That design will probably require a TRO in order to give it effect, but it will extend, possibly widely, beyond the mere adoption of a TRO.”

He concluded: “I do not consider it obvious that everything (or indeed anything) of which the petitioners complain would necessarily be capable of being raised as an objection to the validity of any TRO eventually made. Nor is it clear that the current complaints could be ventilated and decided in law as and when a finalised design for Academy Street is eventually arrived at, whether with or without a relative TRO. In these circumstances it cannot plausibly be maintained that the petition embodying them is premature.”

Accordingly, the respondent’s pleas relating to competency and prematurity were repelled, and a further hearing was fixed to determine the remaining issues in the case.