About this case

Case name

Petition of Simon McLean for judicial review of a decision of Aberdeen City Council

Case reference number

P868/23

Date of hearing

4 April 2025

Time of hearing

10:30 to 13:00 then 14:00 until conclusion

Division

Extra Division

Judges

• Lord Malcolm
• Lord Armstrong
• Lord Clark

Agents and Counsel

For the Appellant

• Agents: Drummond Miller LLP (for the Govan Law Centre, Glasgow)
• Counsel: Joanna Cherry KC and Mike Dailly (solicitor-advocate)

For the Respondent

• Agents: Brodies LLP
• Counsel: Niall McLean (solicitor advocate)

Case description

St Fittick’s Park is a public park in Torry, Aberdeen. 

The petitioner, Mr McLean, lives in Torry.  He, like many other Torry residents, frequently uses the park for recreation.  He says that he goes there most days to exercise and to improve his mental and physical health.  The respondents, Aberdeen City Council, own the park. 

The Council have identified the park as an area suitable for development as an Energy Transition Zone.  This will involve leasing part of the park to Energy Transition Zone Limited (ETZ), a “private-sector-led and not-for-profit company” intended to “reposition the [North East of Scotland] as a globally recognised new and green energy cluster” with funding from the Scottish and UK governments. 

The practical result of this is that a large part of the park will be redeveloped into an industrial area for green energy.  On 19 June 2023, the Council adopted a Local Development Plan which earmarked the park as suitable for future redevelopment along these lines.  A meeting of the full Council on 11 September 2023 resolved, among other things, to:-

1. instruct the Council’s Chief Officer that the park was only to be made available for lease and had to remain in the Council’s ownership;
2. instruct the Chief Officer to enter formal dialogue with ETZ and the Port of Aberdeen to discuss the optimum partnership arrangements to take forward the future development of the site;
3. instruct the Chief Officer to consider as part of such potential partnership arrangements how a proportion of the lease income from the site could be used for the benefit of the local community; agree that approval of any leases was contingent on the Council’s approval of the community benefit package;
4. instruct the Chief Officer to engage with ETZ and the Port of Aberdeen, and any other interested party, as to any proposals they had to develop the site; note community amenity and wellbeing were key considerations for the Council, and instruct the Chief Officer that individual lease agreements had to include details of the community impact remediation steps that would be implemented at the termination of the lease; and
5. instruct the Chief Officer to report the outcome of discussions regarding the site to the earliest appropriate full meeting of the Council.

For Mr McLean, this represented a policy decision to take forward negotiations to lease and develop the park for industrial purposes contingent on Council approval for a community benefit package.  Mr McLean opposes the development of the park.  He argues that it is the only accessible greenspace for the people of Torry.  He highlights that Torry is within the lowest deciles of the Scottish Index of Multiple Deprivation.  Housing in Torry is mainly tower blocks and low-rise flats.  The park is, in effect, Torry’s garden.  Mr McLean says that redevelopment into an Energy Transition Zone would substantially change the character of the park and deprive the residents of Torry of access to nature and greenspace.  This loss will be particularly keenly felt by those residents of Torry who are elderly and disabled. 

Mr McLean now brings a petition for judicial review against the decision of 11 September 2023.  He asks the court to declare that the decision was unlawful and to reduce (overturn) it on the basis that the Council did not comply with its duties under s149 of the Equality Act 2010 and regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.  Specifically, the council did not comply with the public sector equality duty under s149.  It should, argues Mr McLean, have carried out an equality impact assessment to determine how any redevelopment of the park would impact those with “protected characteristics” under the Equality Act 2010, particularly age and disability. 

In answer, the Council point to the precise terms of its decision of 11 September 2023.  All that was decided, say the Council, was that the Chief Officer should have authority to investigate what the redevelopment of the park might involve and what the consequences of such a development would be.  It was not a decision with any real legal consequences, such as a grant of planning permission.  It was simply an instruction to the Chief Officer to investigate the matter and report back to the Council.  It was not a decision which either required an equality impact assessment or was open to challenge by judicial review; insofar as Mr McLean seeks to challenge any proposed redevelopment of the park his petition for judicial review is premature. 

By decision dated 7 August 2024 the Lord Ordinary (Lord Fairley) refused the petition.  In his view, the petition raised a very narrow point: was the Council required to carry out an equality impact assessment before passing its resolution of 11 September 2023?  Properly understood, the resolution of 11 September 2023 was intended to enable investigation of what development of the park might involve.  There was no proposal for redevelopment into which to carry out an impact assessment.  The Council’s argument that the petition was premature was correct, and it had not breached its legal duties.

Mr McLean now reclaims (appeals) against the Lord Ordinary’s decision to the Inner House on the following grounds:-

• First, the Lord Ordinary was wrong to characterise the resolution of 11 September 2023 as merely a decision to investigate. The evidence before him should have led him to determine the resolution of 11 September 2023 was a substantive policy decision to partner with ETZ and the Port of Aberdeen to industrialise the park. 
• Second, the Lord Ordinary was wrong to decide that the resolution of 11 September 2023 was not one which required the drawing up of a full equality impact assessment.

For their part, the Council maintain the Lord Ordinary’s decision was correct and ask the court to refuse the reclaiming motion.

The reclaiming motion will be argued before the Extra Division, chaired by Lord Malcolm, sitting with Lord Armstrong and Lord Clark and livestreamed on Court of Session Live.