Court of Session Clarifies “Prevention of Access” and Substantial Prejudice in Challenges to Traffic Regulation Orders:
Norman Esslemont v Aberdeen City Council [2025] CSIH 31

1. Introduction

This Inner House decision of the Court of Session (Lord President Pentland, Lady Wise and Lord Clark) concerns a statutory appeal under paragraph 35 of Schedule 9 to the Road Traffic Regulation Act 1984 (“RTRA 1984”) against the Aberdeen City Council (City Centre, Aberdeen) (Traffic Management) Order 2025 (“the TRO”). The case arises from controversial “bus gate” and bus-priority measures in Aberdeen city centre, which many businesses blame for reduced footfall and trade.

The appellant, Norman Esslemont, is a long-established Aberdeen retailer, active as a leading campaigner against the city-centre traffic changes. The respondent, Aberdeen City Council, had first introduced the measures by way of an experimental traffic regulation order (“ETRO”) and later made them permanent through the TRO. Esslemont contended that the TRO was unlawful on a number of grounds, principally that:

the Council could not lawfully make the TRO without first securing the consent of the Scottish Ministers under paragraph 13 of Schedule 9 to the RTRA 1984; and
the decision was vitiated by public law errors, including reliance on an irrelevant consideration (the perceived risk of having to repay grant funding), failure properly to treat the ETRO as “experimental”, and inadequate reasons given under the Local Authorities’ Traffic Orders (Procedure) (Scotland) Regulations 1999 (“the 1999 Regulations”).

The decision is important for at least three reasons:

It gives authoritative guidance on the meaning of “prevent… access” in paragraph 13(1)(a) of Schedule 9, and when ministerial consent is required for a TRO that affects access to premises.
It clarifies how the requirement of “substantial prejudice” in paragraph 36(1)(b) of Schedule 9 is to be applied, in light of modern, more liberal standing principles in Scottish public law.
It affirms the breadth of local authorities’ discretion under section 1 RTRA 1984, including their entitlement to take into account financial risks (such as grant clawback) when deciding whether it is “expedient” to make a TRO.

2. Factual and Procedural Background

2.1 The Aberdeen City Centre Masterplan and Bus Priority Measures

In 2015, Aberdeen City Council adopted the Aberdeen City Centre Masterplan, which included a strategy to improve transport infrastructure by prioritising buses and other sustainable modes in the city centre. A core component was the introduction of “bus priority measures”, including “bus gates” at key intersections. Bus gates are sections of road restricted primarily to buses, taxis, cycles (and other authorised vehicles), effectively removing general through-traffic.

To support these aims, in 2021 the Council successfully bid for £12.03 million from the Scottish Government’s Bus Partnership Fund, of which £10 million was for improvement works around South College Street. The grant carried conditions, including expectations about related bus-priority measures in the city centre.

2.2 The Experimental Traffic Regulation Order (ETRO)

In July 2023, invoking sections 9, 10 and 14 of the RTRA 1984, the Council made the Aberdeen City Council (City Centre, Aberdeen) (Traffic Management) (Experimental) Order 2023 (“the ETRO”), which came into force on 1 August 2023 for a testing period of up to 18 months under section 9(3).

The ETRO:

introduced bus priority and “local access only” restrictions on Union Street, Market Street, Guild Street and Bridge Street; and
implemented the necessary street works, funded by the Bus Partnership grant, to support those restrictions.

The ETRO attracted over 500 objections, particularly from city-centre businesses, who considered it had reduced customer access and trade. A media- and business-led “Common Sense Compromise” was developed, seeking, among other changes, removal of the bus gates.

2.3 Committee Consideration and Full Council Decision

As the ETRO neared the end of its experimental period, the Council’s Net Zero, Environment and Transport Committee met on 11 June 2024. Officers recommended making the ETRO permanent, after reviewing the trial’s effects. Despite widespread opposition and the “Common Sense Compromise”, the committee approved making the ETRO permanent (with two minor modifications) by 6–3, but the minority successfully insisted that the matter be referred to full Council.

Ahead of the full Council meeting on 11 October 2024, officers prepared a second report, again recommending permanence. They highlighted:

improvements in bus journey times, which could be undermined if the scheme were reversed; and
a risk that grant funding might have to be repaid if bus-priority measures were not maintained.

The “Common Sense Compromise” was specifically considered and rejected as fundamentally undermining the bus-priority scheme. The full Council, by 21 votes to 15, accepted officers’ recommendations, deciding to make the ETRO permanent subject to one modification: removing the prohibition on right turns from Union Terrace to Rosemount Viaduct.

2.4 The Incompetent Modification and the Final TRO

The October modification proved procedurally problematic. Officers informed the Urgent Business Committee in October 2024 that this change was incompetent. On 18 December 2024, the Urgent Business Committee:

heard from Adrian Watson (Aberdeen Inspired, and representing multiple business organisations) urging reconsideration of permanence; but
by 4–3, decided to remove the earlier modification and proceed with making the ETRO permanent without that change.

The Council then formally made the Aberdeen City Council (City Centre, Aberdeen) (Traffic Management) Order 2025 on 17 January 2025, which came into force on 31 January 2025 as the permanent TRO replicating (with minor changes) the ETRO.

2.5 The Pre-Action Correspondence and Appeal

Esslemont’s solicitors wrote to the Council in January 2025, arguing that:

the Council required Scottish Ministers’ consent to convert the ETRO into a permanent TRO under paragraph 13 of Schedule 9 RTRA 1984, given that access to certain streets and properties was restricted for more than 8 hours per day; and
the Council’s decision was ultra vires and procedurally unlawful.

The Council rejected these contentions. Esslemont then instituted statutory proceedings under paragraph 35 of Schedule 9 to challenge the validity of the TRO.

3. Statutory Framework

Only a few key provisions need to be highlighted for understanding the case; the judgment sets them out in more detail.

3.1 Power to Make Traffic Regulation Orders (Section 1 RTRA 1984)

Section 1 allows a traffic authority (here, the local authority) to make a TRO where it considers it expedient to do so for specified purposes, such as:

facilitating the passage of traffic (including pedestrians);
preventing use of a road by unsuitable vehicular traffic; and
improving the amenities of the area, among others.

3.2 Experimental Orders (Section 9 RTRA 1984)

Section 9 allows “experimental” traffic schemes, enabling authorities to:

trial new traffic measures (ETROs); and
gather public feedback before deciding whether to make them permanent.

These orders normally have a maximum effective period of 18 months.

3.3 General Traffic Management Duty (Section 122 RTRA 1984)

Section 122 requires traffic authorities, when exercising their functions, to:

secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities…

while having regard, so far as practicable, to matters such as “securing and maintaining reasonable access to premises”.

3.4 Ministerial Consent to Orders Affecting Access (Paragraph 13, Schedule 9)

Paragraph 13(1)(a) provides that where it is proposed to include in a local authority TRO any provision:

so prohibiting or restricting the use of a road as to prevent, for more than 8 hours in any period of 24 hours, access for vehicles of any class to any premises situated on or adjacent to that road or any other premises accessible for vehicles of that class from, and only from, that road

the order cannot be made without the consent of the Scottish Ministers, except where paragraph 13(2) applies. One such exception (para 13(2)(b)(i)) is where:

no owner, lessee or occupier of premises such as are mentioned in sub-paragraph (1)(a) has submitted to the authority any objection…

3.5 Challenge to Traffic Orders (Paragraphs 34–36, Schedule 9)

Paragraph 34 applies these provisions to TROs made under section 1.
Paragraph 35 allows “any person” to question the validity of a TRO on the grounds that:
- it is not within the relevant powers; or
- a “relevant requirement” (a procedural requirement of the Act or applicable regulations) has not been complied with.
Paragraph 36(1)(b) gives the court power to quash the order (or part of it) if it is satisfied that the applicant’s interests have been “substantially prejudiced” by such non‑compliance.

3.6 The 1999 Procedure Regulations

The Local Authorities’ Traffic Orders (Procedure) (Scotland) Regulations 1999 govern consultation, publication, objections, hearings and notification of reasons. Among them:

Regulation 8 requires a hearing (before an independent reporter) where Ministerial consent is required under paragraph 13, and Ministers indicate they will not consider giving consent without a hearing.
Regulation 17(1)(b) obliges the authority to notify each objector in writing of its reasons for making the order despite their objection.
Regulation 20B(5) treats objections to an ETRO as objections to a permanent TRO that reproduces and continues the ETRO’s provisions.

4. Issues Before the Court

The appellant’s grounds can be grouped under five main heads:

Ministerial consent and “prevention of access”: Did the TRO include provisions that prevented vehicular access to premises for more than 8 hours per day, so that Scottish Ministers’ consent was required under paragraph 13? If so, had there been non-compliance with a “relevant requirement”?
Substantial prejudice and standing: Even if there was a procedural breach, could the court quash the TRO only if Esslemont’s interests had been “substantially prejudiced”? Did he satisfy this requirement given that he did not own or occupy premises directly on or adjacent to the affected stretches of road?
Improper purpose / irrelevant considerations: Did the Council unlawfully take into account the risk of grant repayment, thereby acting for an improper purpose or on the basis of an irrelevant consideration?
Experimental nature of the ETRO and evaluation of evidence: Was the ETRO genuinely “experimental”, and did the Council act irrationally in weighing up the economic impacts and rejecting the “Common Sense Compromise”?
Adequacy of reasons: Did the Council comply with Regulation 17 by providing adequate, intelligible reasons for (a) making the TRO; and (b) changing its position regarding the right turn from Union Terrace to Rosemount Viaduct?

5. Summary of the Judgment

The Inner House unanimously refused the appeal.

Key holdings include:

Substantial prejudice: The court adopted a broad, realistic approach to “substantial prejudice”. Esslemont’s role as a leading campaigner and business figure meant he could properly claim to have been substantially prejudiced by any failure to seek ministerial consent or to provide adequate reasons. He had standing to bring the appeal.
“Prevention of access” under paragraph 13: The court held that “prevent” must be given its ordinary meaning: to stop or completely hinder access. A mere reduction or increased inconvenience of access does not amount to “prevention”. As access to the relevant premises remained possible (albeit via more circuitous routes), paragraph 13 was not engaged and ministerial consent was not required.
Financial risk as a relevant factor: The Council lawfully took into account the possibility of grant repayment. Given the breadth of the “expedient” test in section 1 RTRA 1984 and the wide discretion conferred, considering financial implications was entirely proper; it did not convert the TRO into an improper-purpose decision.
Experimental character and weighing of evidence: The ETRO had a clear experimental purpose (trialling bus-priority measures and gathering feedback), which the Council properly explained and followed. The Council’s evaluation of objections, economic impacts and alternatives (including the “Common Sense Compromise”) fell squarely within its policy and judgmental sphere, reviewable only on Wednesbury grounds; no irrationality was shown.
Adequacy of reasons: Read together, the Council’s email to objectors, the committee reports (of June and October 2024) and the formal statement of reasons gave a clear and sufficient explanation both for making the TRO and for its handling of the right-turn modification. Regulation 17 was complied with.

6. Analysis of Key Legal Holdings

6.1 Substantial Prejudice and Standing under Paragraphs 35–36

Although the Council argued that only persons with direct property interests on or adjacent to affected streets could be “substantially prejudiced”, the court rejected this narrow view as “too narrow and legalistic” ([37]–[39]). Drawing on Walton v Scottish Ministers and Bruce v Moray Council, the court emphasised that:

modern Scottish public law recognises that non-owners may have a legitimate interest in challenging public decisions, particularly where the issue is legality rather than private rights;
a person leading an organised campaign on a matter of public concern, with a strong local connection and specific engagement in the process, can meet the “substantial prejudice” requirement; and
prejudice can flow from the lost opportunity to participate more fully in a statutory process (such as a ministerial consent process with a possible reporter’s hearing), not just from direct economic impact.

The court pointed out that, had the Council sought ministerial consent:

Scottish Ministers might have required a hearing before an independent reporter under Regulation 8; and
Esslemont, as a prominent campaign leader and representative of many objecting businesses, would have had a realistic opportunity to participate in that hearing.

By failing (on the appellant’s hypothesis) to trigger this process, the Council arguably deprived him of a procedural opportunity – a significant enough detriment to satisfy the “substantial prejudice” threshold.

This is a notable development: the court aligns the concept of “substantial prejudice” in Schedule 9 with the modern, liberal approach to standing and interest to sue, rejecting a narrow, property-based reading urged by the Council (which had sought support from Tomkins v City of London Corporation).

6.2 The Meaning of “Prevent… Access” in Paragraph 13(1)(a)

The central statutory interpretation issue concerned when a TRO “prevents” vehicular access to premises for more than 8 hours in any 24-hour period.

The appellant argued that any reduction in access, including longer or less convenient routes, amounted to “prevention”, thereby triggering the ministerial-consent requirement of paragraph 13. The court rejected this construction emphatically.

Breaking down paragraph 13(1)(a), the court identified three components ([42]):

the order must prohibit or restrict the use of a road;
the prohibition or restriction must operate so as to prevent, for more than 8 hours in any 24-hour period, access for vehicles of any class; and
the premises must be either:
- on or adjacent to the road in question; or
- premises accessible for vehicles only from that road.

There was no dispute that the TRO restricted use of certain roads for more than 8 hours. The case turned on whether access had been “prevented”.

The court held:

“prevent” should be given its ordinary meaning:
“to stop something from happening or someone from doing something” ([43], adopting the Oxford English Dictionary).
That meaning does not extend to reducing the ability of a person to do something. Reduced convenience does not equal prevention.
Adopting the appellant’s approach would mean that any minor reduction in ease of access would invoke ministerial consent. This was “unrealistic” and would “impose excessive and disproportionate burdens on central government” ([43]).

Critically, the court accepted the Council’s unchallenged evidence that all the premises relied on by the appellant (set out in the table at [33]) remained accessible by vehicle, albeit via modified routes. The access routes were more circuitous but functional; access was therefore not “prevented” in the statutory sense.

Thus:

Paragraph 13 was not engaged as a matter of law.
No ministerial consent was required.
There was no non-compliance with a “relevant requirement” and the first ground necessarily failed.

This is the leading Scottish authority on the scope of “prevent… access” in Schedule 9. It settles that there must be total or practical impossibility of vehicular access from any route, not merely a decline in convenience or attractiveness of access.

6.3 Financial Considerations, Grant Repayment and Proper Purpose

Esslemont’s second substantive ground was that the Council acted unlawfully by:

treating the risk of grant clawback as a relevant factor in deciding whether to make the TRO; and
thereby acting for an improper purpose, supposedly unrelated to the statutory objectives of a TRO under section 1 RTRA 1984.

The court, however, concluded there was “no merit” in this argument ([45]).

(a) The True Purpose of the TRO

The statement of reasons accompanying the TRO explained that:

bus-priority measures (bus gates/lanes) were designed to enhance bus reliability and journey times;
removing through traffic was intended to create an improved environment for pedestrians and cyclists; and
the overarching rationale was to improve amenity and the city-centre environment.

These are classic section 1 purposes (facilitating public transport, promoting environmental amenity, and encouraging appropriate use of roads). The suggestion that the TRO was made primarily to avoid grant repayment could not stand once the court examined the actual reasons.

(b) The Breadth of the “Expedient” Test

The court relied heavily on the statutory term “expedient” in section 1(1) RTRA 1984 and on the UK Supreme Court’s reasoning in R (HSE) v Wolverhampton City Council and R (Hurst) v London Northern District Coroner ([46]).

Key points:

“expedient” is a deliberately broad term: it means that an authority may act where, in its judgement, doing so is appropriate in all the circumstances.
Section 1 confers a wide discretionary power covering a range of amenity and traffic-management purposes. It does not prescribe a closed list of considerations.
Within that framework, courts may interfere only where the authority’s judgement is irrational in the Wednesbury sense.

The court emphasised that a public authority exercising a discretionary power for public purposes is “entitled and usually required to take into account the cost to the public” of its actions ([48]). Assessing whether cost is proportionate to the aims pursued is intrinsic to responsible decision-making.

(c) The Grant-Funding Risk

The October 2024 decision-making materials recorded that:

Scottish Ministers expected bus-priority measures to be implemented in the city centre as part of the South College Street-funded project; and
the grant conditions allowed Transport Scotland to seek recovery if those expectations were not met ([47]).

The Chief Officer of Finance advised that:

a contingent liability might need to be recognised in the Council’s financial reporting; and
if unresolved by 31 March 2025, provision might have to be made in the accounts for repayment, contrary to the Council’s “risk appetite statement”.

Against this background, the court held:

it was clearly reasonable for the Council to consider the possibility of grant clawback when deciding whether it was “expedient” to make the TRO;
financial risk was one factor among many, and not the dominant or improper driver of the decision; and
this consideration was neither excluded by statute nor intrinsically irrational, therefore plainly a legitimate factor in the balancing exercise.

Accordingly, ground 2 failed.

6.4 The “Experimental” Nature of the ETRO and Evaluation of Objections

Esslemont challenged the genuineness of the ETRO’s “experimental” character, suggesting that officers had always intended the restrictions to be permanent, and that the consultation process was therefore illusory. He also criticised the Council’s treatment of economic evidence and the “Common Sense Compromise”.

The Inner House gave these arguments short shrift.

The purpose of the ETRO was “clearly explained”: to trial the effect of bus priority routes and to gather evidence and feedback ([51]).
The committee’s June 2024 report expressly described the experimental order as a way of introducing measures while conducting consultation.
The Council did in fact:
- receive and consider numerous objections (over 500);
- evaluate the claimed economic impacts and changing nature of city centres;
- consider (and reasoned rejection of) the “Common Sense Compromise”; and
- review statistical data provided by bus operators.
There was no evidence that the committee was misled by inaccurate information or that the Chief Officer’s supposed predisposition determined the outcome ([50]).

The court reiterated that:

the weighing of economic impacts, transport efficiency, environmental goals and urban regeneration is a quintessential policy process for the elected authority;
the legal standard is Wednesbury unreasonableness – not correctness or optimal policy; and
on the facts, the Council’s conclusions (that the TRO would promote business and the local economy, support the Masterplan, contribute to regeneration and maintain sufficient business access) were “conclusions that the respondent was entitled to reach” ([49]).

Thus, grounds 3 and 4, attacking the substance and good faith of the decision-making, failed.

6.5 Adequacy of Reasons under Regulation 17

Ground 5 focused on whether the Council gave adequate reasons:

for making the TRO despite the objections; and
for initially including, then later dropping, the modification concerning right turns from Union Terrace to Rosemount Viaduct.

(a) Reasons for Making the TRO

The Council sent an email to objectors on 17 January 2025, stating that:

the key decision was taken by the full Council on 11 October 2024;
the decision was based on two reports (11 June and 2 October 2024), both linked in the email; and
those reports summarised the objections and the Council’s response.

Additionally, a public statement of reasons explained:

why the TRO was made;
its intended effects; and
the policy aims (bus reliability, pedestrian and cyclist environment, amenity enhancement).

The court considered that any objector, reading the email and linked documents, “would have appreciated that the objections had been rejected for the reasons given in the report” ([52]). This met the Regulation 17 requirement.

(b) Reasons for Changing Course on the Right Turn

On the right-turn issue, the email explained that:

the Urgent Business Committee on 18 December 2024 had instructed that the earlier decision be modified “to procedurally meet the [Council’s] decision” to consider removing the prohibition; and
the proposal to remove the prohibition would itself be subjected to a separate statutory consultation in early 2025, with any objections reported to a committee ([54]).

The court found this explanation “perfectly intelligible to any informed reader” ([55]): it made clear that:

the original modification had been procedurally defective;
rather than silently dropping it, the Council would consider the change through a fresh, lawful process; and
objectors would have a further opportunity to be heard on that discrete issue.

Accordingly, the reasons challenge also failed.

7. Precedents and Authorities Cited

7.1 Walton v Scottish Ministers [2012] UKSC 44; 2013 SC (UKSC) 67

Walton is a leading UK Supreme Court decision on standing in public law challenges. It recognises that:

public interest litigants may have standing to challenge decisions affecting the environment or public policy, even where their personal interests are not uniquely or directly harmed; and
restricting standing too narrowly risks insulating unlawful public action from scrutiny.

The Inner House invoked Walton to justify a flexible, non-formalistic understanding of “substantial prejudice” for the purposes of paragraph 36(1)(b) Schedule 9, stressing that legal challenges to traffic orders often raise broader issues of public and environmental concern.

7.2 Bruce v Moray Council [2023] CSIH 11; 2023 SC 197

In Bruce, the Inner House considered the standing of an individual acting as part of a local campaign group. It held that an applicant’s interest may be established by:

active participation in a campaign; and
a genuine and sustained engagement with the underlying issue.

The court likened Esslemont to the appellant in Bruce: as a “leading member of the local business community” and coordinator of a successful crowdfunding campaign, he had “demonstrated a genuine concern” about the legality of the TRO ([39]). This underpinned the finding of substantial prejudice.

7.3 Tomkins v City of London Corporation [2020] EWHC 3357 (Admin)

Tomkins concerned procedural challenges to traffic schemes in London. The Council relied on it to argue that substantial prejudice is an essential, and relatively stringent, prerequisite to quashing an order for procedural defects.

While the Inner House did not dispute the principle that substantial prejudice must be shown, it refused to interpret this requirement narrowly. Building on Walton and Bruce, the court held that:

substantial prejudice is not confined to direct proprietary or economic damage; and
loss of participation rights in a statutory process (here, a potential reporter’s hearing) can itself amount to such prejudice.

7.4 R (on the application of East Bergholt Parish Council) v Babergh DC [2019] EWCA Civ 2200

This English Court of Appeal case, relied upon by the appellant, concerned the relevance of funding considerations to planning decisions. It was cited for the proposition that it is improper for a public authority to make a planning decision simply to avoid having to repay grant.

The Inner House distinguished this line of argument in the RTRA context, where:

the statutory test of “expedient” under section 1 is particularly wide;
amenity, environment and transport efficiency are inherently connected with public expenditure; and
grant conditions can legitimately shape what is practically achievable.

Therefore, reliance on East Bergholt did not assist the appellant.

7.5 St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643

St Modwen underlines the limited role of the courts in reviewing policy and evaluative judgements of planning authorities: such decisions are amenable only to Wednesbury review, not merits appeal.

The Inner House applied similar reasoning here: the balancing of transport, environmental and economic considerations in a TRO context is primarily for elected councillors. So long as they:

take relevant considerations into account;
do not rely on legally impermissible factors; and
avoid irrationality;

the court will not interfere, even if others might reasonably have reached a different conclusion.

7.6 R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189

In Hurst, the House of Lords considered when a public authority must take certain factors into account in exercising discretionary powers. Lord Brown drew on the New Zealand case CREEDNZ Inc v Governor General to explain that:

certain factors may be so obviously material that they must be taken into account; but
subject to statutory context, the selection of relevant considerations is largely for the decision-maker.

This principle supported the Inner House’s view that:

Section 1 RTRA does not prescribe an exhaustive list of relevant considerations; and
the Council had latitude to weigh up economic, financial, environmental and amenity factors in deciding whether making the TRO was expedient ([46]).

7.7 R (HSE) v Wolverhampton City Council [2012] UKSC 34; [2012] 1 WLR 2264

In Wolverhampton, the Supreme Court stressed the breadth of the term “expedient” in a different statutory context, indicating that:

“expedient” implies an appropriateness judgement for the authority; and
courts should be slow to substitute their own view of what is expedient.

The Inner House quoted this authority to confirm that the Council’s discretion under section 1 RTRA is wide, reinforcing the permissibility of taking financial and risk considerations into account.

8. Complex Concepts Explained

For clarity, the following legal and technical concepts feature prominently in the judgment.

8.1 Traffic Regulation Order (TRO)

A TRO is a legally binding order made by a traffic authority (usually a local authority) under the RTRA 1984, which can:

prohibit or restrict use of roads or parts of roads;
regulate parking, speed limits, waiting/loading restrictions, bus lanes, and so on.

Breaching a TRO can be a criminal offence or give rise to enforcement via penalty charges, depending on the regime.

8.2 Experimental Traffic Regulation Order (ETRO)

An ETRO is a temporary order designed to test new traffic arrangements. Authorities can:

implement an ETRO (for up to 18 months);
gather real-world data and public feedback; and
then decide whether to make a permanent TRO continuing its provisions.

Objections to an ETRO are treated as objections to any subsequent TRO that “reproduces and continues” its effect (Regulation 20B(5)).

8.3 Bus Gates

A bus gate is a point on the road network restricted to certain vehicle types (commonly buses, taxis, bicycles, and emergency or authorised vehicles). For general traffic, passing through the gate is prohibited, enforced by signs and often cameras. The aim is to:

prioritise buses and reduce congestion;
discourage through-traffic in sensitive areas; and
improve pedestrian and cycling conditions.

8.4 “Expedient” in Section 1 RTRA 1984

“Expedient” means something like “advantageous”, “appropriate” or “suitable” in all the circumstances. It signals a broad discretionary judgement:

the authority must form its own view of what is in the public interest, considering the purposes in section 1(1)(a)–(g);
courts do not substitute their own view of expediency unless the decision is irrational or legally flawed.

8.5 Wednesbury Unreasonableness

Derived from the case Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, this is the classic standard for reviewing discretionary decisions:

A decision is unlawful if it is so unreasonable that no reasonable authority could have made it.
This is a high threshold; disagreement with the policy or merits is not enough.

8.6 “Improper Purpose” and “Irrelevant Considerations”

When a statute gives a power for a specified purpose, the authority must:

use the power only for that legitimate purpose, not for an ulterior one (improper purpose); and
take into account all mandatory relevant factors, avoid legally irrelevant ones, and not be unduly influenced by considerations that the statute implicitly excludes.

In this case, the question was whether avoiding grant repayment was an extraneous or improper motive. The court held that considering financial risk was legitimate, alongside the core transport and amenity objectives.

8.7 “Substantial Prejudice” (Paragraph 36 Schedule 9)

A procedural defect in making a TRO will not automatically result in the order being quashed. The court must also be satisfied that the applicant’s interests have been “substantially prejudiced”.

In light of this judgment:

prejudice may consist of loss of a meaningful opportunity to participate in decision-making (e.g. a reporter’s hearing), not just economic or proprietary loss;
the prejudice must be real and significant, but need not be direct or monetary.

8.8 Ministerial Consent (Paragraph 13 Schedule 9)

Where a TRO would truly prevent vehicular access to premises for more than 8 hours per day, the local authority cannot make the order without Scottish Ministers’ consent, unless no affected owner/occupier objects.

This consent mechanism:

acts as a safeguard against local authorities cutting off access to premises entirely; and
can lead to a formal hearing, with an independent reporter, before Ministers decide.

The case clarifies that this safeguard is reserved for situations where access is effectively impossible, not merely less convenient.

9. Impact and Broader Significance

9.1 Clarifying When Ministerial Consent is Required

The most concrete doctrinal impact of this decision is its interpretation of “prevent… access” in paragraph 13(1)(a). Local authorities across Scotland now have clear guidance that:

ministerial consent is not required merely because a TRO makes access harder, less direct, or less attractive; and
consent is only triggered where, in practice, vehicular access to premises from any route is cut off for more than 8 hours per day.

For future schemes (bus gates, pedestrianisation, low-traffic neighbourhoods, etc.), this narrows the circumstances in which paragraph 13 is engaged, reducing the administrative and political burden on Scottish Ministers and reporters.

9.2 Reinforcing Broad Standing and “Substantial Prejudice” in Statutory Appeals

The judgment is also significant in aligning the “substantial prejudice” requirement with the modern, liberal approach to standing. It confirms that:

campaigners and representative individuals, not just directly adjacent property owners, may bring paragraph 35 appeals; and
their prejudice may be procedural and participatory, particularly where a statutory scheme contemplates further participatory stages (such as ministerial hearings).

This lowers the barrier to legal oversight of major transport and environmental decisions, consistent with Walton and Bruce. It may encourage more structured campaigns to use the statutory appeal route where legal concerns arise.

9.3 Financial Factors in Public Decision-Making

The court’s explicit endorsement of financial considerations as a legitimate factor in assessing what is “expedient” under section 1 will be welcomed by local authorities. It acknowledges:

that public finances and risk management are integral to responsible governance; and
that grant conditions are not extraneous but may shape what options are realistically available.

This pragmatic approach supports the integration of transport, environmental and fiscal policies in long-term city-centre strategies.

9.4 Deference to Democratic Judgement on City-Centre Transformation

Substantively, the judgment reflects judicial restraint in the face of politically contested urban-transport decisions. The Inner House:

acknowledged the depth of opposition from parts of the business community; but
nonetheless affirmed that it is not for courts to decide whether a bus-priority scheme is good policy, only whether the decision was lawful.

As long as authorities:

comply with statutory procedures;
explain their reasons; and
do not act irrationally or for improper purposes;

they have significant latitude to pursue climate, public transport and regeneration agendas, even in the face of business opposition.

9.5 Practical Lessons for Authorities and Objectors

From a practical perspective:

Authorities should:
- carefully map and document alternative access routes to demonstrate that access is not “prevented”, if they wish to avoid paragraph 13 consent requirements;
- prepare thorough officer reports addressing objections and alternatives, recognising that these will form a key part of their reasons dossier;
- explicitly link transport measures to strategic plans (e.g. Masterplans) and grant conditions, to show coherent policy-making.
Objectors should:
- recognise that legal challenges based solely on economic impacts or policy disagreement are unlikely to succeed absent clear legal error;
- focus on procedural safeguards (consultation, reasons, statutory conditions) and any true “prevention” of access if they wish to raise paragraph 13 issues;
- understand that representative campaigners can have standing but must still demonstrate a concrete form of substantial prejudice.

10. Conclusion

Esslemont v Aberdeen City Council [2025] CSIH 31 is a significant addition to Scottish administrative and transport law. It:

clarifies that “prevention” of access in paragraph 13 of Schedule 9 RTRA 1984 requires an effective total blockage of vehicular access, not merely reduced convenience;
adopts a modern, purposive reading of “substantial prejudice”, accommodating representative challengers and procedural forms of prejudice;
confirms the breadth of local authorities’ discretion under section 1, including the legitimate consideration of financial and grant-related risks; and
reaffirms the limited, Wednesbury-based nature of judicial review of politically sensitive transport and urban-regeneration decisions.

While the appeal was ultimately refused and the Aberdeen city-centre bus-priority scheme remains in place, the judgment sets out a clear and authoritative framework for future challenges to traffic regulation orders in Scotland. It balances the need for effective democratic control over urban-transport policy with the imperative of ensuring that such policy is implemented lawfully and with due regard to statutory safeguards.

Court of Session Clarifies “Prevention of Access” and Substantial Prejudice in Challenges to Traffic Regulation Orders: Norman Esslemont v Aberdeen City Council [2025] CSIH 31