No Common‑Law Duty to Consult or Give Reasons on Council Land Disposals, but Community Councils Have Standing: Commentary on Helensburgh Community Council for Judicial Review [2025] CSOH 105

1. Introduction

This case concerns a high-profile challenge by Helensburgh Community Council to Argyll and Bute Council’s decision to select a preferred developer – proposing a supermarket – for a prime waterfront site where the town’s old swimming pool once stood. The site forms part of a wider waterfront regeneration project that has already delivered a new leisure centre, car parking and public realm works.

The judgment of Lord Ericht in the Outer House raises, and clarifies, a series of important public law questions:

• When is a local authority’s commercial decision to dispose of land amenable to judicial review?
• Does the common law of fairness impose consultation or reasons-giving duties when a council sells its own heritable property?
• Do community councils have “sufficient interest” (standing) to challenge such decisions?
• How do time-bar and the plea of mora, taciturnity and acquiescence operate after permission has been granted?
• What counts as unlawful misdirection or predetermination where councillors express strong views about past decisions and available options?

The petition was ultimately dismissed. But the opinion is significant for two main reasons:

1. It firmly re‑affirms (and applies) the rule that, when a public body disposes of its own heritable property under a “best consideration” duty (here, section 74 of the Local Government (Scotland) Act 1973), it is not generally subject to a common‑law duty of procedural fairness – and therefore no Gunning/Moseley consultation duties and no freestanding duty to give reasons arise in that context.
2. It recognises that a community council, acting within its statutory purpose under section 51 of the 1973 Act, does have sufficient interest to seek judicial review of a council decision affecting its community, even where it has no proprietary or contractual right at stake.

These principles will shape future litigation about council land disposals and the role of community councils in challenging local authority decisions.

2. Factual and Procedural Background

2.1 The site and its redevelopment

Historically, Helensburgh’s waterfront included a pier and adjacent land, including a swimming baths complex. The baths on the landward side were demolished, and new baths were constructed on the seaward side, completed in late 2022. This left a vacant strip on the landward part of the block – the “Helensburgh Waterfront Development (Commercial Area)” (“the Area”).

The Council (the respondent) owns the site. It had long been envisaged, as part of the business case for the new leisure centre, that the commercial site would generate income – by way of a capital receipt and/or revenue stream – to support the cost of the leisure centre. The site is within the designated town centre, where planning policy permits a mix of commercial, leisure, retail and other uses.

2.2 Marketing and engagement

In December 2022, the Helensburgh and Lomond Area Committee agreed:

• To market the former pool site for all expressions of interest, not just retail.
• That a broad range of uses was in principle compatible with planning policy (subject to future detailed applications).
• That a two‑stage marketing process would be used, with:
• Stage 1: non‑financial, high‑level expressions of interest.
• Stage 2: full financial offers from shortlisted bidders.

At Stage 1, nine bids were received, reflecting a range of possible uses (community, hotel, restaurants, retail, etc.). The petitioner itself submitted a bid for a skatepark, car and coach parking, and event space, to be delivered via a community trust funded by the Scottish Land Fund. That bid was rejected at Stage 1; the petitioner did not proceed as a bidder thereafter.

The Council commissioned Ryder Architecture to conduct what it described as a “public engagement exercise” – explicitly not a statutory consultation – to gather views on broad types of development (e.g. open space/community use, convenience retail/fast food, mixed use) illustrated by generic image boards. About 83 people participated over a week in June 2023.

The Ryder report recorded no single consensus. There was, however, significant concern about retail/fast food development and a strong desire for some outdoor recreation or flexible indoor/outdoor community/visitor uses. The Council’s internal Property Development Working Group (“PDWG”) took this report into account when scoring the Stage 1 bids. Seven of the nine were shortlisted.

2.3 Stage 2 offers and retail study

At Stage 2, five detailed offers were received, spanning community, hotel, restaurant and retail uses. The PDWG assessed them against five criteria:

1. Economic development impacts.
2. Planning/transport considerations.
3. Legal/governance/risk.
4. Community feedback (including the June 2023 engagement).
5. Financial outcomes (capital/revenue and burdens).

For Stage 2, economic and financial criteria were weighted more heavily, to reflect the need to generate a “material contribution” towards the cost of the new leisure centre.

The Council also commissioned a retail study from Colliers. That report concluded that:

• Helensburgh could support additional comparison and convenience floorspace over the next 5–10 years.
• Commercial development of the waterfront site would:
  • retain leaked expenditure;
  • complement existing town centre retail by increasing footfall; and
  • promote mixed-use development supporting the wider town centre and transport hub.

On 12 March 2024 the Area Committee:

• Noted the Colliers study, which supported commercial development.
• Noted Avison Young’s commercial review supporting the officer assessment.
• Approved the PDWG’s selection of two preferred bidders for interview.

2.4 Selection of preferred developer

The two shortlisted bidders – both involving retail components – were interviewed on 23 April 2024. The PDWG concluded that “F” (Forrest Developments Limited) offered the best combination of:

• financial return (best price), and
• qualitative merits against the five criteria.

F’s proposal included a supermarket of around 1,700 m² plus a smaller retail unit. The PDWG recommended F as preferred developer.

On 15 August 2024, the Council’s Policy and Resources Committee accepted that recommendation. Its formal decision was to:

• select F as preferred developer for the commercial area; and
• authorise officers to negotiate detailed heads of terms for sale of the site, such terms to be reported back to committee.

Any eventual sale would be conditional on obtaining planning permission; the planning decision would be taken separately by the Council in its capacity as planning authority, with its own statutory consultation and objection process.

2.5 Local opposition and the petition for judicial review

Locally, there was substantial opposition to the supermarket proposal. The Community Council organised a public petition (over 4,000 signatures) against a supermarket on the waterfront.

At a public meeting on 10 September 2024, and in a subsequent email of 5 October 2024, Councillor Campbell‑Sturgess made statements to the effect that:

• the “decision” to use the site for commercial development had been taken years earlier, tied to funding the leisure centre;
• he, as a newly elected councillor, was essentially presented with a choice between two supermarket bids, not a blank canvas about the site’s use; and
• reversing the commercial development plan at this stage would expose the Council to major financial and legal risks, and would be “irresponsible”.

The Community Council (the petitioner) brought judicial review, seeking declarator that the 15 August 2024 decision was unlawful and reduction of that decision. The main pleaded grounds were:

1. The “public consultation” (Ryder engagement) was not carried out fairly or lawfully.
2. The Council failed properly to take the product of that engagement into account.
3. The Council failed to give adequate reasons for the decision.
4. The Committee misdirected itself as to the options legally open to it on 15 August 2024 (including by pre‑determination).

The Council, for its part, also argued:

• the petition was incompetent;
• the petitioner lacked sufficient interest (standing); and
• the petition was time‑barred and/or barred by mora, taciturnity and acquiescence.

3. Summary of the Judgment

3.1 Competence and supervisory jurisdiction

The Court held that the petition was competent. The decision challenged concerned the proposed disposal of council‑owned land, and the Council’s power to dispose of land derives from section 74 of the 1973 Act. That is a statutory power, so – in principle – its exercise is amenable to judicial review.

However, relying on Stannifer Developments Ltd v Glasgow Development Agency, the Court held that the exercise of such a statutory power to sell land does not ordinarily attract a common‑law duty of procedural fairness (and thus no related duties to consult or to give reasons), where the authority is acting essentially as a commercial landowner and no existing legal rights are being determined or removed.

3.2 Sufficient interest (standing)

The Court held that the Community Council did have sufficient interest to bring the petition. It emphasised:

• The modern, interest‑based approach to standing articulated in AXA General Insurance Co Ltd v Lord Advocate, which focuses on the role of the courts in upholding the rule of law, not narrowly on private rights.
• The Community Council’s statutory purpose under section 51 of the 1973 Act: to ascertain, co‑ordinate and express community views to public authorities, and to act in the community’s interests.

That statutory role gave the petitioner a sufficient interest in a decision affecting the use and disposal of a key community site.

3.3 Time-bar and mora, taciturnity and acquiescence

On time‑bar:

• The challenge to the 15 August 2024 decision was brought within the three-month limit in section 27A of the Court of Session Act 1988.
• At the permission stage, the Court had already ruled that the petition was not time-barred; that decision could not be reopened at the substantive hearing.

On mora, taciturnity and acquiescence:

• Such a plea will very rarely succeed in judicial review since the introduction of the statutory time limit (John Paton & Sons Ltd v Glasgow City Council).
• In any event, the petitioner had not been fully aware of the relevant earlier decisions and evaluations because the Council had lawfully excluded public access to confidential commercial reports and restricted minutes under sections 50A–50J of the 1973 Act.
• The petitioner could not be criticised for failing to challenge decisions whose details were not publicly available. The plea of mora, taciturnity and acquiescence therefore failed.

3.4 Substantive grounds of challenge

1. No common‑law duty to consult or follow Gunning/Moseley principles.
   The Court held that the Gunning consultation principles (as endorsed in Moseley v Haringey) derive from the general common‑law duty of procedural fairness. In light of Stannifer, that duty does not apply when a public authority is disposing of its own heritable property under a “best consideration” power, absent special circumstances (e.g. deprivation of existing rights). Therefore:
   • there was no duty to consult at all; and
   • the Gunning/Moseley requirements did not apply to the Ryder engagement exercise.
   This ground failed.
2. Use of the Ryder Report.
   For the same reason – no duty of fairness – the argument that the Council had to “conscientiously take into account” the product of consultation also failed. In any event, the Court found that:
   • The PDWG and committees did in fact take the Ryder Report into account.
   • The officer assessment noted explicitly that “the community view was that retail development was less preferable.”
3. No freestanding duty to give reasons for preliminary commercial disposal decisions.
   Again, any duty to give reasons at common law stems from the duty of fairness. Since that duty did not apply in this context, there was no requirement to provide reasons to the public for selecting F as preferred developer. In any event, if reasons were required:
   • They could be taken from the officer report and appended PDWG and Avison Young assessments, which set out the criteria and comparative scoring.
   • Following R (Bates) v Maldon DC, where a committee aligns with an officer recommendation, the reasons in the report are the reasons for the decision.
   • Those reasons were adequate under the familiar Wordie Property test.
4. No misdirection or unlawful predetermination.
   The Court rejected both strands of the misdirection argument:
   • There was no misdirection by officers: the committee was not told it was legally bound to select a supermarket or to accept the recommended bidder. The report simply recommended F as preferred developer.
   • Apparent pre‑determination is an aspect of procedural fairness. Since fairness did not apply in this context, that doctrine did not in principle bite.
   • In any event, even treating it as relevant, the high threshold for apparent pre‑determination (whether a fair‑minded and informed observer would see a real possibility the decision‑maker’s mind was closed) was not met:
     • The views of one councillor (Campbell‑Sturgess) could not be attributed to the Committee as a whole (Piper v Kyle and Carrick DC).
     • His email, read in context, reflected the long history of policy decisions to use the site for commercial development to help fund the leisure centre, not an unlawful refusal to consider alternatives available under law at the August 2024 meeting.
     • The marketing and assessment process had in fact considered a wide range of non‑retail uses; there had been no “done deal” at the outset.

Accordingly, the petition was dismissed. The Court upheld the Council’s pleas on competence, standing (in the Council’s favour on this point only insofar as recognising competence of review but rejecting lack-of-interest), time-bar (as already resolved), and the substantive merits, but rejected the pleas of insufficient interest and of mora, taciturnity and acquiescence.

4. Detailed Analysis

4.1 Competence and reviewability: commercial land disposals and statutory powers

4.1.1 West, Redcroft and Abundance: contractual carve‑out and statutory context

The starting point in Scotland is the framework in West v Secretary of State for Scotland 1992 SC 385. West identified the “tripartite” structure for the supervisory jurisdiction:

1. a decision‑maker;
2. a person or class over whom the decision‑maker exercises power; and
3. the source of that power (law, contract, etc.).

West also recognised a carve‑out: where parties are in a purely contractual relationship, disputes over the exercise of contractual powers are ordinarily to be resolved by the law of contract, not by judicial review.

In Abundance Investments Ltd v Scottish Ministers 2020 SLT 163, Lord Clark undertook a modern review of these principles, concluding (and the Inner House in Redcroft Care Homes Ltd v Edinburgh City Council expressly agreeing) that:

• The tripartite test is not an inflexible jurisdictional gatekeeper; the key is whether the rule of law requires judicial supervision of the decision in question.
• Where a public body is exercising a statutory power, even if in a contractual context, judicial review remains available if the decision can be characterised as an exercise of that statutory jurisdiction or duty, or a function independent of the body’s role as a contracting party.

4.1.2 Section 74 LGA 1973: “in any manner they wish” and “best consideration”

Section 74(1) of the Local Government (Scotland) Act 1973 provides that a local authority may dispose of land “in any manner they wish”, subject to Part II of the 1959 Town and Country Planning Act and subsection (2). Subsection (2) imposes a duty not to sell for less than “the best that can reasonably be obtained”, subject to limited de minimis exceptions in subsection (2A).

Lord Ericht treated the Council’s decision to select a preferred bidder as part of the process of exercising that statutory power. Thus:

• The decision is, in principle, subject to judicial review as an exercise of a statutory power.
• However, the nature of that power – a commercial choice of purchaser, akin to a private landowner’s decision, constrained mainly by the “best consideration” requirement – crucially shapes the content of any public law duties that might attach, especially procedural fairness.

4.2 Stannifer and the limits of the common‑law duty of fairness

4.2.1 The Stannifer precedent

The decisive authority for Lord Ericht was Stannifer Developments Ltd v Glasgow Development Agency 1999 SC 156. There, an unsuccessful bidder sought judicial review of an enterprise agency’s decision to recommend the sale of land to a rival developer. The relevant statute (the Enterprise and New Towns (Scotland) Act 1990) contained a power materially similar to section 74(2): the agency could not dispose of land for less than the “best consideration that can reasonably be obtained”.

The Inner House in Stannifer (per the Lord Justice Clerk, Cullen) held that:

“There is, however, no general rule that a body seeking to exercise a statutory power is under a duty to act fairly, and accordingly that its exercise of that power is not valid unless it has done so… the respondents were concerned with a proposed transaction in essentially the same way as any commercial body, and hence were subject to the same contractual and delictual responsibilities that might affect such a body.”

The Court distinguished situations where fairness was required:

• where the authority was making a quasi‑judicial determination between competing persons; or
• where the exercise of power deprived persons of an existing right or benefit (e.g. disposal of land held for specific educational purposes, as in R v Barnet LBC, ex p Pardes House School Ltd).

Absent such features, there is no general common‑law duty to act “fairly” in the sense of giving interested parties a hearing, consulting them, or even explaining reasons, when a public body sells its land.

4.2.2 Application in Helensburgh: no fairness duty in selecting a preferred bidder

Lord Ericht considered himself bound by Stannifer and found the circumstances closely analogous:

• The Council was disposing of its own heritable property for value, in a competitive market, primarily to secure best consideration and regeneration benefits.
• The decision to select a preferred bidder did not itself determine any legal rights of the petitioner or other members of the public; nor did it deprive them of any existing legal entitlement to the land.
• Indeed, any development remained contingent upon a separate planning process, with its own statutory consultation regime.

He contrasted this with cases involving:

• land held for specified statutory purposes (e.g. education) where disposal may itself engage public law duties to consult beneficiaries; and
• common good land (Grahame v Magistrates of Kirkcaldy), where the public has a recognised interest in the land’s use and alienation.

In Helensburgh, the Council was “concerned with a proposed transaction in essentially the same way as a commercial body” and thus not under a general common‑law duty to act “fairly” towards the community in selecting a preferred developer.

4.3 Standing: community councils and sufficient interest

4.3.1 AXA, Eba, Wightman: from rights to interests and the rule of law

The test for standing in Scottish judicial review was reshaped by the Supreme Court in AXA General Insurance Co Ltd v Lord Advocate 2012 SC (UKSC) 122. Lord Reed emphasised that:

• The courts’ “essential function” is the preservation of the rule of law, which extends beyond the protection of individual legal rights.
• A public authority can violate the rule of law without infringing any individual’s private rights.
• A strictly rights‑based approach to standing is therefore “incompatible” with the supervisory jurisdiction; the relevant concept is “interest”, to be assessed contextually.

Thus, where an exercise of power “affects the public generally”, insisting on a narrow, individualised interest might prevent the courts performing their constitutional role. Cases like Eba and Wightman further confirm this flexible, context‑sensitive approach.

4.3.2 Section 51 community councils and the Court’s reasoning

Section 51 of the 1973 Act defines the “general purpose” of community councils:

“…to ascertain, co‑ordinate and express to the local authorities for its area, and to public authorities, the views of the community which it represents, in relation to matters for which those authorities are responsible, and to take such action in the interests of that community as appears to it to be expedient and practicable.”

Lord Ericht relied heavily on this statutory mandate. He held that:

• The petitioner’s interest did not stem from its failed bid for the site; once that was withdrawn, it was no longer a commercial actor in the process.
• Rather, its interest arose as a community council, acting to represent and protect the interests of the Helensburgh community in relation to a significant local authority decision.
• That role, when combined with the broader rule‑of‑law rationale in AXA, provided “sufficient interest” to justify bringing the application.

This is an important affirmation that community councils are not mere lobbying bodies but have recognised standing to challenge local authority decisions that affect their communities, even where no individual rights are directly at stake.

4.4 Time‑bar and the limited role of mora, taciturnity and acquiescence

4.4.1 Section 27A and finality of time‑bar decisions at permission stage

Section 27A of the Court of Session Act 1988 introduces a three‑month time limit for judicial review, running from the date when the grounds arose. The decision whether a petition is time‑barred is, per Lauchlan and O’Neill v Scottish Ministers, to be taken at the permission stage.

In Helensburgh, the Council argued at the substantive hearing that the grounds in truth arose earlier than 15 August 2024, and thus the petition was late. The Court refused to entertain that argument, noting that:

• It had already determined at the permission stage, after hearing argument, that the petition was not time‑barred.
• Allowing the issue to be reopened at the merits hearing would undermine the purpose of the permission filter and the statutory scheme.

4.4.2 Mora after the statutory time limit

The Council also pled mora, taciturnity and acquiescence, arguing that the petitioner sat on its hands while the marketing and engagement processes proceeded, causing prejudice to the Council and preferred bidder.

Lord Ericht noted that:

• Since the introduction of section 27A, successful pleas of mora in judicial review are “vanishingly rare” (John Paton).
• The Council had relied on statutory confidentiality provisions (sections 50A–50J of the 1973 Act) to exclude the public from meetings and reports concerning commercially sensitive bid information.
• The practical effect was that the Community Council lacked sufficient information about the evolving decisions to mount a meaningful earlier challenge.

Against that background, the Court rejected the plea of mora: the petitioner had not been unreasonably silent or inactive in circumstances where key information was not publicly available.

4.5 Consultation, the Gunning principles and their non‑application here

4.5.1 The Gunning/Moseley framework

English law, now widely followed in Scotland where relevant, has crystallised four basic conditions for lawful public consultation (the Gunning principles, endorsed by the Supreme Court in Moseley v Haringey LBC):

1. Consultation must take place at a formative stage of proposals.
2. Sufficient reasons for proposals must be given to allow intelligent consideration and response.
3. Adequate time must be given for responses.
4. The product of consultation must be conscientiously taken into account in finalising any decision.

In Moseley, Lord Wilson emphasised that these requirements are a “prescription for fairness” – they are how the common‑law duty of procedural fairness operates where a public authority engages in consultation.

4.5.2 No underlying fairness duty in land disposals

Lord Ericht took an important preliminary step: before asking whether the Gunning requirements were met, he asked whether they apply at all to the sale of council‑owned land under section 74.

Drawing on Stannifer, he answered “no”:

• The Gunning principles are not free‑standing rules; they are manifestations of the common‑law duty of procedural fairness.
• But Stannifer held that no such general duty of fairness arises where a public authority exercises a statutory power to dispose of land, acting as a commercial proprietor, unless it is making a quasi‑judicial decision or interfering with existing rights.
• Accordingly, there was no common‑law duty on the Council to consult residents or community groups about the disposal of the commercial site; the decision whether, when and how to seek views was a matter of policy and discretion, not legal obligation.

Since no fairness duty applied, the Gunning/Moseley principles had no legal traction in this context, and the petitioner’s complaints about the Ryder engagement process (limited invitees, short timescale, qualitative rather than quantitative data, etc.) could not ground illegality.

4.5.3 In any event, Ryder’s report was considered

Even on an esto basis, the Court was not persuaded that the Council ignored or misrepresented community views:

• The PDWG’s detailed assessment, appended to the Policy and Resources report, expressly recorded that “the community view was that retail development was less preferable”.
• The Area Committee reports of September 2023 and March 2024 summarised the Ryder findings, including concerns about retail impact and strong local interest in skatepark provision and broader indoor/outdoor recreation.

The Council plainly knew that many residents opposed retail on the site but, in light of the retail study and financial imperatives, decided that a retail‑led scheme was in the overall interests of the town. In a commercial land disposal context, that is a policy and value judgment, not a matter of legal fairness.

4.6 Reasons: when are they required and were they given?

4.6.1 Reasons and fairness

The classic Scottish formulation in Wordie Property Co Ltd v Secretary of State for Scotland is that reasons must:

• leave the informed reader in no substantial doubt as to the material considerations taken into account; and
• enable them to understand why the decision was reached.

However, the duty to give reasons is itself rooted in procedural fairness – the need to ensure informed challenge and avoid a sense of injustice. As the English Court of Appeal observed in R v Higher Education Funding Council, ex p Institute of Dental Surgery, not every administrative decision carries a common‑law duty to provide reasons.

Lord Ericht applied that logic: because the Council was not under a fairness duty in selecting a preferred bidder for land disposal, it had no general obligation to give reasons to the petitioner or public at large for that selection.

4.6.2 Adequacy of the recorded reasons

Assuming (for argument’s sake) that reasons were required, the Court held that they were adequately provided through the officer report and annexed assessments:

• Following R (Bates) v Maldon DC, where a committee adopts an officer recommendation, the reasons in the officer report are taken to be the committee’s reasons.
• The 15 August 2024 report explained:
  • the history of the marketing process;
  • the assessment criteria;
  • the comparative scoring of the two final bids; and
  • the advice of Avison Young confirming F provided best value.

Those materials clearly indicated that:

• F’s proposal scored higher overall against the five criteria, particularly in economic and financial terms; and
• notwithstanding community concerns about retail, the Council considered that a retail‑led scheme was consistent with its retail strategy and regeneration aims.

On that basis, the Court considered the Wordie test satisfied.

4.7 Alleged misdirection and predetermination

4.7.1 The misdirection argument

The petitioner advanced two related misdirection claims:

1. Officers misled the committee into thinking it was legally bound to choose between two supermarket options, or bound by earlier decisions to dedicate the site to commercial use.
2. Alternatively, the committee (or at least a leading member) had effectively predetermined the outcome, treating a supermarket as a foregone conclusion, such that the 15 August 2024 decision was not taken with an open mind.

Both arguments were rooted in statements made by Councillor Campbell‑Sturgess, particularly his 5 October 2024 email explaining the historical and financial constraints surrounding the project.

4.7.2 No misdirection by officers

Lord Ericht rejected the suggestion that officers misdirected the committee:

• The report to the Policy and Resources Committee contained a recommendation to select F as preferred developer; it did not suggest that was the only lawful option.
• As Mr Hendry’s affidavit explained, councillors remained free to:
  • reject the recommendation;
  • propose a different motion (including choosing no preferred bidder yet); or
  • continue the matter for further information.

Nothing in the documentation suggested councillors were told they lacked legal power to do anything other than choose one of the two supermarket schemes.

4.7.3 Apparent predetermination and the fairness test

The modern test for apparent predetermination (closely related to apparent bias) asks whether a fair‑minded and informed observer would conclude there is a real possibility the decision‑maker had closed their mind to the merits of the issue.

However, as Lord Ericht noted, predetermination is conceptually an aspect of procedural fairness. Since fairness did not apply in this commercial land disposal context, there was no free‑standing predetermination claim available.

Even if that hurdle were overcome, the Court declined to find pre‑determination:

• Attribution: Under Piper v Kyle and Carrick DC, the court generally will not interrogate the subjective state of individual committee members. The decision is that of the collective body. The reasons must be found in the committee’s recorded decision and reports, not in statements by a single councillor to constituents.
• Content and context of the email: The councillor’s email emphasised:
  • that the overall decision in principle to fund the leisure centre via commercial development of the site was taken years earlier;
  • that he could not “undo” that chain of policy decisions without exposing the Council to serious financial and legal risk; and
  • that his current role was to choose the best outcome among the options placed before him.
  Lord Ericht regarded this as a factual explanation of the background and constraints, not evidence that he had closed his mind to the lawfully available options on 15 August 2024.
• Broader process: The Council’s marketing and assessment process had, in fact, solicited and considered a broad range of possible uses (including the Community Council’s own non‑retail proposal at Stage 1). There was no “done deal” from the outset; the ultimate convergence on retail bidders reflected the scoring outcomes and the retail study.

A fair‑minded observer, acquainted with that background, would not see a real possibility that the committee’s decision on 15 August was predetermined.

5. Simplifying Key Legal Concepts

5.1 Supervisory jurisdiction and West

The Court of Session’s “supervisory jurisdiction” is its power to review actions of public authorities to ensure they stay within the law – the Scottish equivalent of judicial review. West held that:

• The jurisdiction is engaged whenever a body is entrusted with power or jurisdiction by law, and someone is subject to that power; and
• Purely contractual disputes between parties are normally outside this jurisdiction and belong in ordinary civil procedure.

Later cases have stressed that this is not rigid: what matters is whether the rule of law requires the courts to oversee the decision.

5.2 Section 74 LGA 1973: disposal of council land

Section 74 gives councils a broad power to dispose of land “in any manner they wish”, but with a duty to obtain the “best consideration” reasonably obtainable (for significant disposals). In practice:

• Councils can choose the type of development and the nature of the purchaser, but must have regard to value and may not simply gift land away except in limited circumstances.
• The quality of development (economic, social, environmental benefits) can legitimately inform what counts as “best consideration” – not just the highest cash price.

Judicial review remains available if, for example, a council sold land at a gross undervalue without lawful justification, or for an improper purpose.

5.3 Community councils’ statutory role (section 51)

Community councils are statutory bodies with the job of articulating community views to local and public authorities. They are not decision‑makers; rather, they:

• aggregate and express community perspectives;
• engage in local planning and governance processes; and
• may take “such action… as appears… expedient and practicable” in the community’s interests.

Helensburgh confirms that this statutory role gives community councils genuine legal standing in public law disputes.

5.4 Gunning/Moseley consultation principles

Where a public body decides to consult (or is obliged to consult) on a proposal, lawful consultation normally requires:

1. Early engagement (before the decision is fixed).
2. Enough information to allow meaningful responses.
3. Enough time for those responses.
4. A genuine willingness to consider and be influenced by the responses.

But these duties only arise where a duty of fairness applies in the first place. Helensburgh holds that, in the specific context of council land disposals under section 74, that underlying fairness duty does not generally arise.

5.5 Sufficient interest (standing)

“Standing” is about who is allowed to bring a judicial review. The contemporary Scottish test is whether the person has a “sufficient interest” in the decision or act complained of, having regard to:

• the nature of the decision;
• the role of the applicant (e.g. statutory representative body); and
• the broader public interest in upholding the rule of law.

One does not need a personal right or financial loss; a recognised public or representative interest can suffice.

5.6 Mora, taciturnity and acquiescence

This is a Scots common‑law doctrine akin to laches or undue delay. A claim may be barred where:

1. there is delay (mora) in asserting the claim;
2. the claimant is silent about their intention to challenge (taciturnity); and
3. their conduct suggests acceptance of the situation (acquiescence), usually causing prejudice to others.

After the introduction of the statutory three‑month limit for judicial review, this plea is now rarely successful and requires quite striking facts.

6. Broader Impact and Implications

6.1 For Scottish local authorities

• Clarity and comfort on commercial disposals: Councils can be more confident that decisions about whom to sell land to – where the main constraint is achieving best consideration – are not encumbered by common‑law duties to consult, follow Gunning procedures, or publicly justify preliminary selection decisions.
• Planning vs property functions: The judgment underscores the importance of distinguishing:
  • the property decision (who to sell to and on what terms), which is largely a commercial/judgment call subject to section 74; and
  • the planning decision (whether a particular development is acceptable), which is heavily regulated and entails statutory consultation, engagement with objectors, and reason‑giving.
• Use of “engagement” exercises: Councils may choose to carry out non‑statutory engagement for political, democratic or informational reasons. Helensburgh confirms that:
  • such exercises do not automatically transform into legally binding “consultations”; and
  • their design and execution will normally be treated as discretionary unless fairness duties arise from other sources.
  Nonetheless, councils should be wary: in other contexts (e.g. closure of facilities, social care restructuring), fairness duties may apply and Gunning/Moseley will then bite.
• Recording reasons: Even where there is no strict legal duty to give reasons, detailed officer reports – especially where decisions are sensitive – provide an important evidential shield. As in this case, they enable the court to see a rational decision‑making process and can head off challenges.

6.2 For community councils and local campaigners

• Standing confirmed, but remedies constrained: Community councils now have clearer authority to bring judicial reviews concerning decisions that materially affect their communities. However, this case shows that success on the merits will depend heavily on the legal context:
  • challenges to planning permissions, policy changes or licensing decisions will engage stronger fairness obligations;
  • challenges to purely commercial land disposals will face the Stannifer barrier to fairness‑based grounds.
• Best use of legal leverage: In disputes about the use of council‑owned sites:
  • the planning process (with its statutory consultation and policy framework) may offer more fertile ground for legal challenge than the land disposal decision itself;
  • arguments about common good status, public trust, or specific statutory purposes attaching to land (education, open space, etc.) may create fairness obligations absent in ordinary commercial disposals.
• Engagement with policy and plans: Where the crucial decisions are made upstream – e.g. in local development plans, regeneration strategies, or business cases tying capital projects to asset sales – it is vital for community councils to engage early and vigorously, as those decisions may later frame and limit realistic options.

6.3 For public law in Scotland

• Stannifer’s continuing force: The case confirms that Stannifer remains authoritative and is not undermined by more recent developments on standing and the scope of judicial review. Not every exercise of a statutory power gives rise to a fairness duty.
• Contextualised fairness: Helensburgh is a reminder that fairness is intensely context‑specific. The same authority (a council) may:
  • owe robust fairness obligations when closing a care home or school; but
  • owe none when deciding to whom to sell surplus land, provided no protected rights are infringed.
• Standing’s evolution: The recognition of community councils as having sufficient interest continues the post‑AXA trend towards a more open, interest‑based standing test, especially where public bodies with statutory representational roles are concerned.
• Permission stage finality: The court’s refusal to revisit time‑bar at the substantive hearing reinforces the importance of the permission stage as the forum for resolving preliminary issues, promoting efficiency and certainty in judicial review.

7. Conclusion

Helensburgh Community Council for Judicial Review [2025] CSOH 105 is a significant Outer House decision at the intersection of local government finance, town centre regeneration, community participation and public law doctrine.

Its core holdings may be summarised as follows:

• A council’s decision, under section 74 of the 1973 Act, to select a preferred bidder for the sale of its own heritable property is amenable to judicial review, but is not generally subject to a common‑law duty of procedural fairness.
• Consequently, there is no legal obligation in this context to conduct a formal consultation meeting the Gunning/Moseley standards, or to give public reasons, unless some other special duty or rights‑impact is engaged.
• Community councils have sufficient interest to bring judicial review proceedings about council decisions affecting their communities, by virtue of their statutory purpose of representing community views and interests.
• Time‑bar decisions under section 27A should be made at permission stage and are not to be reopened later; the plea of mora, taciturnity and acquiescence will only rarely succeed where proceedings are brought within the statutory window.
• Allegations of misdirection and pre‑determination will be assessed against the recorded decision‑making processes and the collective nature of committee decisions, not isolated political statements by individual councillors.

For local authorities, the case confirms substantial autonomy in commercial land disposals, subject chiefly to statutory “best consideration” duties and the separate planning regime. For community councils and campaigners, it underlines both their recognised standing and the importance of choosing the right point of legal engagement – often at the planning or policy stage rather than at the level of commercial sale.

Doctrinally, the decision consolidates the post‑AXA understanding of standing while reaffirming that the common‑law duty of fairness is not a universal overlay on all exercises of statutory power. Fairness, like standing, remains highly sensitive to context. Helensburgh offers a clear and structured application of those principles in the politically charged, but legally constrained, arena of council asset disposal.