The legal eagle taking Aberdeen City Council to court over the much-bemoaned city centre bus gates has revealed the five arguments he believes will prove the measures were put in place “unlawfully”.
Exasperated traders, led by veteran retailer Norman Esslemont, have entrusted Alasdair Sutherland with their battle against the restrictions said to have killed off trade.
Given Mr Sutherland’s promising record in dealing with such issues, they hoped he would achieve what businesses have been pleading for – and get the bus gates axed.
The lawyer argued that the local authority has acted unlawfully when bosses introduced the traffic layout – and later made it permanent.
This was despite overwhelming opposition from the public, with 12,000 backing The P&J’s Common Sense Compromise campaign for some measures to be removed last summer.
Mr Sutherland has now lifted the lid on the tools he will use to pressure the local authority into caving in to the businesses’ desperate demands.
And one of his main arguments is that the bus gates, which were introduced under an Experimental Traffic Regulation Order (Etro) was not an experiment at all.
What are the legal grounds for the Aberdeen bus gate court battle?
Legal papers outline five different aspects which Mr Sutherland plans to challenge the local authority over in the Court of Session in a bid to get the traffic system scrapped.
The lawyer has previously raised issues with the way the bus gates were implemented, saying council chiefs did not follow the correct procedure.
This has now been further explained in his appeal to the Court of Session.
As the first point in his letter, he stressed the move was unlawful as the council had to seek approval from the Scottish Government before making them permanent.
‘Fear of having to repay cash spent on South College Street is irrelevant’
Mr Sutherland’s next point – named “irrelevant considerations” – gets a bit more personal, criticising council chiefs for putting their own agenda before that of city centre businesses.
He argues that the administration should never have brought up their unproven fears over potentially having to repay the cash they spent on the South College Street revamp as a reason to keep the traffic measures in place.
The issue was brought up in a meeting in October, with the local authority’s legal team explaining to elected members that these road improvements were carried out on the back of the bus gates being put in place.
And axing the traffic bans, they claimed, could result in Transport Scotland clawing back millions granted for the project.
Council co-leader Ian Yuill later etched those fears in official writing, pushing for the bus gates to be made permanent to avoid the hypothetical conundrum of paying back the £8m.
However, Mr Sutherland says this is “not a legitimate purpose for making a traffic order and not a relevant consideration”.
He adds: “The council should not have taken this supposed risk into account to justify making the permanent order and acted unlawfully in doing so.”
What about ignoring traders’ concerns? Was that illegal?
Mr Sutherland has also raised issues with the lack of “adequate investigation” into the impact the bus gates have had on city centre traders.
He says council leaders have allocated “excessive importance” to improving bus times, while “summarily rejecting the overwhelmingly negative feedback from businesses”.
And he argues that given the “experimental” nature of the bus gates, they should have listened to all sides instead of pushing the bus times “narrative” first and foremost.
In December, The Press and Journal exclusively revealed a string of damning emails between bus companies and council planning boss David Dunne.
Such courtesy was not extended to traders, however, with opposition leader M Tauqeer Malik accusing the administration of pushing their own hidden agenda.
Mr Sutherland adds: “The council prioritised the impact on bus times above all else, with council officers going so far as to request evidence from local bus companies that would ‘strengthen the argument for keeping’ the bus priority measures.
“The council failed to adequately and reasonably consider all the impacts and responses to the Etro before determining to make the provisions of the Etro permanent.”
Lawyer says ‘bus gates were never a genuine experiment’
The legal goes on to say that – with all of this in mind – introducing the experimental bus gates order was no experiment at all.
He clarifies that for the bus gates to be considered “experimental”, council leaders should have considered their impact and made a decision based on that.
Meanwhile, their “handling of the process indicates it was minded to make the bus gates permanent regardless of the real-world impact on citizens and local business”.
And in further qualms about the legality of the council’s actions, Mr Sutherland points out that they never provided the reasons for cementing the traffic layout.
This – as well as their U-turn on removing the right turn ban on Union Terrace – should have been officially confirmed in writing when issuing the order, he says.
However, the letter sent out to objectors on January 17 simply stated the bus gates are here to stay and nothing more.
In conclusion, Mr Sutherland laments: “The council’s reasons are completely inadequate and unintelligible.”
What happens next?
Now that the legal challenge is officially lodged with the Court of Session, Aberdeen City Council has 21 days to respond to Mr Sutherland’s arguments.
They could either fold to the issues raised and admit defeat – in which case the bus gates will be axed and the court case dropped – or decide to fight the appeal.
If they opt for the latter, the case could go before a judge within the next three to five months.
‘There is still time for the council to see common sense’
Mr Esslemont, who has repeatedly stressed the negative effect the bus gates have had on businesses, hopes this urges the council to “see common sense” and back down before it’s too late.
He said: “Looking at all the grounds Mr Sutherland has based the legal challenge on, it certainly seems extremely positive and I’m quietly confident we’ll succeed.
“Given the strength of the evidence that our lawyer has produced, I think the council should take that on board and have a serious rethink before they contest the appeal.
“That would be the sensible option, for them to – as everybody said in the past – see common sense.”
He added: “At this stage, I would like to make an impassioned plea to the Aberdeen public to support our Crowdjustice page with a donation from £5 upwards.
“This will send a continued and powerful message to the council that we want to reclaim the city centre that we all once loved.”
People can find out more about the traders’ crusade and donate here.
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