Petition of Simon McLean for Judicial Review (Court of Session)

Factual and Procedural Background

The Plaintiff sought judicial review of a resolution passed by Aberdeen City Council on 11 September 2023 concerning the future use of St Fittick's Park, located in the Torry area of Aberdeen. The Council had previously adopted a Local Development Plan on 19 June 2023 that designated the park as suitable for development as part of an Energy Transition Zone. The Plaintiff did not challenge the adoption of the Local Development Plan but focused the challenge on resolution 9.6 of 11 September 2023. This resolution instructed the Council's Chief Officer - Corporate Landlord to engage in discussions with Energy Transition Zone Limited and the Port of Aberdeen regarding potential development partnerships, leasing arrangements, and community benefit packages related to the sites. The Plaintiff contended that the resolution was unlawful due to the Council's failure to carry out an equality impact assessment as required by the Equality Act 2010 and associated regulations. The Court granted permission for judicial review on two grounds, but only one was pursued. The case progressed with affidavits and submissions addressing whether the Council had a duty to conduct an equality impact assessment prior to passing the resolution.

Legal Issues Presented

1. Whether Aberdeen City Council was under a duty to carry out an equality impact assessment prior to passing resolution 9.6 of 11 September 2023 under section 149 of the Equality Act 2010 and regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.

Arguments of the Parties

Appellant's Arguments

• The Council failed to comply with its Public Sector Equality Duty by not conducting an equality impact assessment before passing resolution 9.6.
• The resolution concerned a potential lease for industrial development, not enhancement of green space, making the assessment necessary at the earliest stage.
• The Public Sector Equality Duty must be rigorously applied with advance consideration integral to policy development, as supported by case law and statutory guidance.
• The failure to conduct the assessment rendered the resolution unlawful, justifying declarator and reduction.

Respondent's Arguments

• The resolution did not constitute a substantive decision to develop or lease but merely authorised preliminary investigations and discussions.
• An equality impact assessment was not required at this investigative stage, making the challenge premature.
• Judicial review concerns actions with substantive legal consequences; the resolution was an instruction to gather information, not a final decision.
• The resolution was not a new or revised policy but a procedural step, thus not triggering the duty to conduct an equality impact assessment at that time.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court identified that the challenge was narrowly focused on whether the Council was required to conduct an equality impact assessment before passing resolution 9.6, which authorised investigations and discussions regarding potential development of St Fittick's Park. The Court noted that the Local Development Plan, which designated the park for industrial development, was not challenged. The Court accepted the Respondent's submission that the resolution was a preliminary step to gather information necessary for any future substantive decision. The Court reasoned that conducting an equality impact assessment without knowing the details of any proposed development would be illogical and premature. The resolution did not confer any new legal rights or powers nor did it constitute a final policy decision. Therefore, the Court found no breach of the Public Sector Equality Duty or the specific duties regulations in passing the resolution. The Court sustained the Respondent's pleas-in-law and refused the petition.

Holding and Implications

The petition is refused.

The Court held that Aberdeen City Council did not breach its duty under section 149 of the Equality Act 2010 or regulation 5 of the 2012 Regulations by passing resolution 9.6 without an equality impact assessment, as the resolution was an instruction to investigate and not a substantive decision. The direct effect is that the Council's resolution stands and no declarator or reduction is granted. The decision does not set new precedent beyond affirming that preliminary investigatory resolutions do not trigger the duty to conduct equality impact assessments. Issues of expenses remain reserved.