Inner House rejects challenge to decision to make permanent traffic order for Aberdeen bus gates

About this case:

• Citation:
  [2025] CSIH 31
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Pentland

Appellant Norman Esslemont, who had worked in retail in the city for 60 years, challenged the decision of 17 January 2025 in relation to the “bus gates”, which he and other local stakeholders considered had a negative impact on footfall and sales for businesses in the city centre. The respondent’s position was that the order had been clearly explained and adequately reasoned, and it was within its powers to make the order permanent.

The appeal was heard by the Lord President, Lord Pentland, with Lady Wise and Lord Clark. Burnet KC and Sutherland, solicitor advocate, appeared for the appellant and Byrne KC appeared for the respondent.

Irrelevantly considered risk

In 2015, the respondent issued the Aberdeen City Centre Masterplan, one part of which envisaged that some streets in the city centre would be reserved solely for the use of buses, taxis, and cycles. The Scottish ministers offered a grant of £12.03 million to assist in the implementation of bus priority measures in the city. Subsequently, the respondent used powers conferred on it by sections 9, 10, and 14 of the RTRA to make an experimental order (ETRO) introducing bus gates on Union Street, Market Street, Guild Street, and Bridge Street.

The ETRO was strongly opposed by several stakeholders in the Aberdeen business community between 2023 and 2024. A report on the operation of the ETRO prepared for a meeting of the respondent in June 2024 noted over 500 objections, however it was approved by the Net Zero, Environment and Transport Committee by a 6:3 majority and by full council by 21:15. One modification was made to remove a prohibition on right turns from Union Terrace onto Rosemount Viaduct, but this was later remove after it was found to be incompetent.

In January 2025, the appellant instructed his solicitors to write to the respondent contending that it could not convert the ETRO into a TRO unless it had obtained the consent of the Scottish ministers. He also submitted that the respondent’s decision to convert the ETRO into a TRO was outwith its powers. Before the Inner House the appellant further submitted that he had been substantially prejudiced by the respondent’s procedural breach, that the respondent had irrelevantly considered the risk of having to repay the grant money to the Scottish ministers, and that it had not provided adequate reasons for its decision.

For the respondent it was submitted that the appellant had failed to identify any substantial prejudice suffered, and in any event it remained possible to access the premises of the objectors notwithstanding the TRO. Cogent reasons had been given for making the TRO and the respondent complied with all statutory duties.
Excessive and disproportionate burdens

Lord Pentland, delivering the opinion of the court, said of the first ground of challenge: “The appellant argued that any reduction in access was sufficient to amount to access being prevented within the meaning of the sub-paragraph. We do not agree that this is a tenable construction of the word ‘prevent’ in the context of the statutory provision. The word should be given its ordinary meaning, which is to stop something from happening or someone from doing something.”

He explained further: “The appellant’s construction would mean that any reduction in access, however minor, would require the authority to obtain ministerial consent before making an order. This would be unrealistic and would impose excessive and disproportionate burdens on central government. It seems highly unlikely that the legislature intended that every TRO having any degree of impact on access to premises on or adjacent to an affected road would require ministerial consent before it could be made.”

In respect of the concerns around repayment of the grant money, Lord Pentland said: “As part of its decision on 11 October 2024 to make the TRO the respondent agreed that in accepting grant funding for the South College Street project, there was an expectation from the Scottish ministers that bus priority measures would be installed within the city centre and, should this not be the case, the conditions of the grant award letter explicitly provided for Transport Scotland to recover funding from the respondent. The respondent noted that should the bus prioritisation measures implemented following the South College Street improvements change, there was a risk that Transport Scotland would seek to recover funding they had provided for the project.”

He added: “There is nothing at all surprising or in any sense improper about the respondent taking account of the financial implications for the public purse when considering whether to make the TRO. The respondent was entitled to have regard to the possibility that the grant funding might have to be repaid if the TRO was not made. This was quintessentially a matter for it to address in the exercise of its broad discretionary powers. It follows that the second ground of appeal must fail.”

Lord Pentland concluded on the final ground of appeal: “The respondent issued a statement of reasons to the public explaining why the TRO had been made and its effect. In particular, the statement of reasons explained that the prohibition of the right turn from Union Terrace to Rosemount Viaduct was to discourage through traffic from routing via Union Street. Having regard to the totality of information made available to the objectors, the reasons for the respondent’s decision to make the TRO were adequately explained.”

Having rejected all the grounds of appeal, the appeal was accordingly refused.