Introduction

The case of Cains Trustees (Jersey) LTD and another for Judicial Review of a decision of the Highland Council ([2024] CSOH 80) was adjudicated by the Scottish Court of Session's Outer House on August 9, 2024. The petitioners, acting as trustees for the Eastgate Unit Trust, challenged the Highland Council's decisions to redesign Academy Street in Inverness, alleging procedural unfairness and failure to consider material factors during the consultation process. This commentary delves into the intricacies of the judgment, elucidating the legal principles established and their broader implications for public planning and consultation processes.

Summary of the Judgment

The petitioners contested the Highland Council's resolutions made on August 28 and September 14, 2023, which advanced designs to restrict vehicular traffic on Academy Street. They asserted that the council failed to conduct a proper consultation, neglected material considerations such as economic and traffic impact assessments, and operated with predetermined intentions favoring a specific proposal. The court, presided over by Lord Sandison, examined these claims against established legal frameworks governing public consultations and procedural fairness. The judgment ultimately favored the petitioners, ruling that the consultation process was indeed unlawful due to its inherent unfairness and the council's failure to consider alternative proposals adequately.

Analysis

Precedents Cited

The judgment extensively referenced key precedents to frame the legal obligations of public authorities in consultation processes:

• R (Moseley) v Haringey London Borough Council [2014] UKSC 56: Highlighting the common law duty to act fairly and the doctrine of legitimate expectations in consultations.
• R v Brent London Borough Council, Ex p Gunning (1985): Establishing essential requirements for meaningful consultations, including timing, reasoning, and consideration of alternatives.
• Bolton Metropolitan Borough Council v SSE (1990): Defining material considerations in decision-making processes.
• R (Smith) v East Kent Hospital NHS Trust [2002]: Emphasizing the necessity of renewed consultations when proposals undergo fundamental changes.

These precedents collectively underscored the necessity for public authorities to maintain transparency, fairness, and thoroughness in their consultation endeavors.

Legal Reasoning

Lord Sandison’s opinion centered on the principles of procedural fairness and the duty to consult impartially and comprehensively. The court scrutinized the Highland Council's consultation process, identifying that the shift from Option A to Option B represented a fundamental change that was inadequately addressed in subsequent consultations. Key points in the legal reasoning included:

• Fairness in Consultation: The council failed to allow meaningful engagement with Option A after transitioning to Option B, thereby violating the Sedley principles of fair consultation.
• Material Considerations: Economic and traffic impact assessments were not conducted at appropriate stages, limiting the council’s ability to consider essential factors influencing the decision.
• Predetermination: Evidence suggested that the council was predisposed to Option B due to funding considerations, which closed off open deliberation regarding alternatives.

The court concluded that these failures rendered the council's decisions unlawful, as they breached the fundamental requirements of fair consultation and proper consideration of material facts.

Impact

This judgment sets a significant precedent for public planning and consultation processes in Scotland and beyond:

• Strengthening Procedural Fairness: Local authorities must ensure consultations remain open and impartial, even when preliminary decisions or preferences exist.
• Comprehensive Consideration of Alternatives: Authorities are now more clearly mandated to consider and consult on all viable options, preventing premature exclusion of alternatives.
• Rigorous Assessment of Material Factors: Mandatory assessments, such as economic and traffic impact studies, must be integral parts of the consultation phases to inform decision-making adequately.

Future cases will likely reference this judgment to evaluate the adequacy of consultation processes, especially in urban planning and development projects.

Complex Concepts Simplified

Procedural Fairness: The obligation of public authorities to follow fair processes in decision-making, ensuring transparency, impartiality, and the opportunity for affected parties to provide input.

Material Considerations: Factors that are relevant and significant to the decision-making process, which, if not considered, can render a decision unlawful.

Sedley Principles: A set of criteria derived from the case law that outlines the requirements for fair consultations, including early engagement, provision of sufficient information, adequate time for responses, and conscientious consideration of feedback.

Predetermination: When decision-makers are biased towards a particular outcome before considering all evidence and alternatives, leading to a lack of impartiality.

Conclusion

The Cains Trustees judgment reinforces the critical importance of maintaining fairness and transparency in public consultations. By invalidating the Highland Council's decisions due to procedural shortcomings, the court underscored that public authorities must diligently adhere to established legal standards to ensure legitimate and equitable decision-making. This case serves as a reminder that consultations are not mere formalities but essential processes that safeguard democratic principles and protect the interests of stakeholders. Moving forward, local councils and public bodies must meticulously design and execute their consultation processes to avoid similar legal pitfalls and uphold the integrity of their decision-making frameworks.