Summary of Opinion — Judge Ericht

Factual and Procedural Background

The petition was brought by the Petitioner challenging a decision made by the Respondent on 15 August 2024 to select a preferred developer (Company F) for the sale of a waterfront commercial parcel (the Area) in The City. The Area formed part of a larger waterfront regeneration project that included a newly completed leisure/swimming facility (completed late 2022) and associated parking. The Respondent, as owner of the Area and local planning authority, conducted a two-stage marketing exercise (expressions of interest followed by full financial offers), a targeted public engagement exercise managed by Company C, and professional assessments by commercial consultants including Company A and Company B.

The Petitioner (a community council) submitted that the decision to select a preferred bidder was unlawful on four principal grounds: (1) the public engagement/consultation was not carried out fairly, (2) the results of the engagement were not taken into account, (3) inadequate reasons were given for the decision, and (4) the Respondent had been misdirected or had predetermined the decision. The Respondent resisted the petition, advancing preliminary pleas of incompetence, time-bar, and lack of sufficient interest, and substantive pleas denying unlawfulness.

Judge Ericht heard affidavit material from Respondent officials (including Attorney Hendry and Attorney McLaughlin), considered minutes and reports of relevant committee meetings, and determined issues of jurisdiction, standing, time-bar, and the merits of the asserted procedural defects. The petition was dismissed.

Legal Issues Presented

1. Whether the Respondent's decision to select a preferred bidder for the disposal of its own heritable property was amenable to judicial review in the supervisory jurisdiction (scope/competence).
2. Whether the common law duty of fairness (and the Gunning consultation principles) applied to the Respondent's sale process and, if so, whether that duty had been breached (fairness of the public engagement).
3. Whether the Respondent had taken into account the product of the public engagement (use of the Company C report) when making its decision.
4. Whether the Respondent gave adequate reasons for its decision.
5. Whether the Respondent (or individual members) were misdirected or had predetermined the outcome (apparent predetermination).
6. Preliminary procedural questions: competence of the petition, standing (sufficient interest), and time-bar / plea of mora, taciturnity and acquiescence.

Arguments of the Parties

Petitioner's Arguments (Attorney Middleton)

• The sale process engaged the Respondent's public law duties and thus fell within supervisory jurisdiction; the tripartite/contractual carve-out in West did not prevent review.
• The Respondent carried out a public engagement exercise which amounted to consultation and that exercise failed to satisfy the Gunning requirements (not formative, inadequate information, insufficient time, and the product was not taken into account).
• The Ryder (Company C) engagement report was not conscientiously considered or was misrepresented in the officer report; the committee's decision adopted withheld officer recommendations without adequate reasons.
• Statements by an individual councillor showed that officials or members treated earlier policy as precluding a genuine decision, indicating misdirection or predetermination.
• The Petitioner, as a community council with statutory functions under section 51 of the Local Government (Scotland) Act 1973, had sufficient interest to bring the petition.

Respondent's Arguments (Attorney Blair)

• The petition was incompetent because the decision was a commercial decision by a heritable proprietor; it did not involve a relevant jurisdiction in the public law sense (relying on West and Stannifer).
• There was no statutory duty to consult in respect of the disposal and, absent an underlying statutory framework, no general duty of fairness to impose Gunning-type obligations in this context.
• The public engagement was a targeted engagement (Company C) and properly used as part of the wider assessment; its findings were considered by officers and the PDWG and recorded in committee papers.
• No obligation to give detailed reasons for a preliminary selection of a preferred bidder; reasons could be inferred from the officer report and appendices (authority cited: Bates).
• Pleas of time-bar, mora/taciturnity/acquiescence and insufficient interest were advanced in the alternative.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in stages addressing jurisdiction/competence, standing, time-bar and equitable pleas, and the substantive grounds of review.

1. Competence / supervisory jurisdiction.

   The court analysed whether the decision to select a preferred bidder for sale of the Area was an exercise of public law jurisdiction susceptible to supervisory review. The sale was being carried out under the statutory power in section 74 of the Local Government (Scotland) Act 1973 which permits a local authority to dispose of land. However, drawing on Stannifer and related authorities, the court held that there is no general common law duty of fairness attaching to a local authority simply because it proposes to exercise a statutory power to sell land. Stannifer was treated as binding: sales by bodies in similar positions are to be treated as commercial transactions and not generally governed by a duty of fairness. The court therefore concluded that the common law duty of fairness (and hence the Gunning consultation principles which derive from it) did not apply to the decision under challenge.

2. Scope of Gunning consultation principles.

   Because the common law duty of procedural fairness was held not to apply to the Respondent's disposal decision in the present circumstances, the court concluded the Gunning requirements for consultation did not apply. The court explained that the Gunning/Sedley criteria arise where fairness obligations exist (statutorily or at common law), and where no such duty exists those requirements are not triggered.

3. Use and treatment of the engagement (Company C) report.

   Even if the engagement report were to be treated as an input to a consultative process, the court found the Respondent did conscientiously take the engagement results into account. The officer assessment and the PDWG's appraisal expressly recorded community feedback (including the statement that "The community view was that retail development was less preferable"). The court accepted that the engagement was one step in a multi-stage marketing and assessment process and that the Officer/PDWG and external advisers (Company A) engaged with the engagement outcomes when assessing bids.

4. Sufficient interest / standing.

   Applying the public-interest-focused approach to standing (as articulated in AXA and related authorities), the court held that the Petitioner, as a community council with statutory functions under section 51 of the Local Government (Scotland) Act 1973, had a sufficient interest to bring the petition. The Petitioner's statutory purpose to express the views of the local community and to act in its interests justified standing.

5. Time-bar and plea of mora, taciturnity and acquiescence.

   The court had already disposed of the time-bar question at the permission stage and held the petition was lodged within the statutory three-month period. The Respondent's plea of mora/taciturnity/acquiescence was rejected: the court considered the Respondent had properly used statutory exemptions to withhold commercially sensitive material and the Petitioner could not be criticised for delay in challenging matters that were not publicly disclosed.

6. Adequacy of reasons.

   The court held that because the common law duty of fairness did not apply, there was no general obligation to give reasons for a preliminary disposal decision. In any event the officer report and attached assessments (including PDWG and Company A reports) provided sufficient reasons for the committee's decision in line with Bates and the Wordie Property principles for inferring reasons from an adopted officer report.

7. Allegation of misdirection/predetermination.

   The Petitioner relied on statements attributed to one councillor to suggest misdirection or appearance of predetermination. The court (i) declined to rely on an unsigned transcript lodged by the Petitioner and preferred the councillor's later email, and (ii) applied the established test of whether a fair-minded and informed observer would conclude there was a real possibility of predetermination. The court found the councillor's statements reflected factual background and prior policy rather than evidencing the closing of minds; further, the views of a single member do not equate to the collective committee's mind. On that basis the allegation of predetermination failed.

Holding and Implications

HOLDING: The petition was dismissed and the challenge to the Respondent's decision of 15 August 2024 to select a preferred developer (Company F) for the Area was unsuccessful. The court upheld the Respondent's preliminary pleas in law that the sale decision did not engage a common law duty of fairness and that the Gunning consultation principles did not apply in the circumstances.

Implications:

• The immediate practical consequence is that the Respondent's decision to select a preferred bidder stands and the Respondent may proceed with negotiations and the provisional Heads of Terms reported to committee.
• The court emphasised the distinction between the Respondent's role as landowner selling property (a commercial decision) and its separate role as planning authority: any planning application by a purchaser would be subject to the full planning process (including statutory consultation and public objections) and be decided independently by the planning committee.
• No new general rule of public law was established; the decision applies existing authorities (notably Stannifer and related cases) to confirm that a local authority's disposal of its own heritable property, in circumstances like these, is not generally subject to a common law duty of fairness that would import Gunning-style consultation obligations.

Outcome

DISMISSED — the petition challenging the Respondent's decision was dismissed.

Note on anonymization: All named individuals and non-precedent private entities in the original opinion have been replaced with consistent anonymized placeholders (e.g., "Petitioner", "Respondent", "Attorney [Last Name]", "Company [Letter]", "Judge [Last Name]") in accordance with the instruction to remove personally identifiable information. Precedent citations and statutory references are presented as in the opinion because they are legal authorities discussed in the court's reasoning.