Reclaiming Motion by Simon McLean against Aberdeen City Council (Court of Session)

Factual and Procedural Background

Plaintiff resides in a district of The City and, along with others, uses a local park (the Park) owned by Defendant for recreational and wellbeing purposes. The dispute arises from Defendant's intention to allocate part of the Park for industrial and business development. In 2021, Company A was established as a private-sector led not-for-profit entity focused on creating an integrated energy cluster aimed at net zero delivery. The Defendant adopted a local development plan in 2023 that designated an area of the Park as part of an Energy Transition Zone, favouring renewable energy-related development.

In 2023, Company A submitted a masterplan to Defendant. Concurrently, a senior officer of Defendant prepared a report outlining land options within the Energy Transition Zone, including the Park, proposing development in partnership with Company A and another local port authority. The report recommended making the Park available to support future investment while retaining Council ownership and suggested exploring partnership arrangements with potential reinvestment of returns into the community.

Defendant considered the report in September 2023, resolving that the Park should remain in ownership and only be leased under agreed terms, with formal dialogue to be initiated with Company A and the port to advance development proposals. Engagement with stakeholders and consideration of community benefits were also included as conditions.

Plaintiff sought judicial review of the September 2023 resolution, challenging it on grounds of apparent bias due to councillors’ interests, predetermination, breach of legitimate expectation, and failure to comply with public service equality duties under section 149 of the Equality Act 2010, including the alleged omission of an equality impact assessment as required by relevant regulations. The court below limited consideration to the equality impact assessment issue, refusing other complaints.

The lower court held that the resolution did not constitute a final decision to lease or develop the Park but was an initial step to gather information, making an equality impact assessment at that stage premature. Plaintiff appealed this decision.

Legal Issues Presented

1. Whether the Defendant's resolution of 11 September 2023 constituted a policy decision approving development of the Park, thereby engaging the public service equality duty under section 149 of the Equality Act 2010.
2. Whether an equality impact assessment was required at the stage of the Defendant's resolution concerning the Park.

Arguments of the Parties

Appellant's Arguments

• The Council's resolution was a substantive policy decision approving development of the Park, thus triggering the public service equality duty.
• An equality impact assessment should have been conducted at the time of the resolution.

Respondent's Arguments

• The resolution was merely an initial step to gather information and did not amount to a decision to develop or lease the Park.
• Any equality impact assessment at this stage would be premature and unreasonable due to lack of concrete proposals.
• The Park's designation for potential development was already established in the local development plan, which was not challenged.
• Subsequent planning permission and integrated impact assessments would address equality considerations appropriately.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345	Clarification that not every public decision requires an equality impact assessment under section 149.	Used to confirm that the Council was not required to conduct an equality impact assessment at the resolution stage.
Sheakh v Lambeth LBC [2022] EWCA Civ 457	Section 149 does not mandate assessment at any particular moment in the decision-making process.	Supported the view that timing of equality impact assessments depends on the stage and substance of the decision.
Shrewsbury and Atcham BC v Secretary of State for Communities and Local Government [2008] EWCA Civ 148	Judicial review focuses on decisions with substantive legal consequences.	Helped distinguish between preliminary information-gathering and decisions with substantive effects.

Court's Reasoning and Analysis

The court agreed with the lower court that the Defendant's resolution of 11 September 2023 did not constitute a final or substantive decision to develop or lease the Park. Instead, it was an initial procedural step aimed at gathering information and engaging in dialogue with potential partners. The Park had already been designated for potential development in the local development plan, a decision not challenged in these proceedings. Therefore, the public service equality duty under section 149 of the Equality Act 2010 was not engaged at this stage.

The court noted that conducting an equality impact assessment without a concrete proposal would be premature and potentially unhelpful. The resolution did not create substantive legal rights or obligations, which would only arise upon future decisions such as granting planning permission or approving leases. The court also rejected arguments based on drilling activities and the scope of the relevant regulations, emphasizing that equality impact assessments are required in the context of new or revised policies or practices, not preliminary steps.

Holding and Implications

The court REFUSED the reclaiming motion, upholding the lower court's refusal of the petition.

The direct effect of this decision is that the Defendant's resolution to engage in further discussions and information gathering regarding the Park's development does not breach statutory equality duties. No equality impact assessment was required at this preliminary stage. The decision does not set new legal precedent but confirms established principles regarding the timing and application of public service equality duties in administrative processes.