Local authority acted lawfully in appointing preferred developer for land near Helensburgh pier

About this case:

• Citation:
  [2025] CSOH 105
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Ericht

Helensburgh Community Council, which had sought for the land to be put to community use, argued that the respondent had not carried out a fair public consultation and failed to give adequate reasons for the appointment. The respondent opposed the petition on all grounds and argued that the decision was not amenable to judicial review.

The petition was considered by Lord Ericht in the Outer House of the Court of Session. The Dean of Faculty, Dunlop KC, and Middleton, advocate, appeared for the petitioner and D Thomson KC and Blair, advocate, for the respondent.

Highly secretive manner

The area of land over which the dispute formed was located adjacent to the pier at Helensburgh beach. Until recently, the part of the block nearest the beach had been occupied by swimming baths, which were demolished and replaced by new baths completed in late 2022. This left another area of land, designated the Helensburgh Waterfront Development (Commercial Area), which the respondent proposed be sold for use as a supermarket.

On 15 August 2024, the respondent’s Policy and Resources Committee selected a preferred developer for the site, who wished to build a supermarket on it. It had sought interested parties from 2022 onwards and conducted engagement sessions in June 2023 with a variety of groups based on proposals in expressions of interest from bidders, the majority of which were not supermarket options. A report into the outcome of the sessions noted a strong preference for an option with at least some outdoor recreation space, with some welcoming a retail option.

Five full financial offers were received at stage two of the process, with the working group selecting the two best scoring options, both of which were retail, to be shortlisted. The petitioner submitted that the engagement sessions, which involved a total of 83 people, were conducted in a highly secretive manner and done at very short notice. None of the documents relied upon had been released to the public and the decision was narrated in only superficial terms.

For the respondent it was submitted that there was no obligation to provide reasons for a preliminary disposal of land. It had made a commercial decision as heritable proprietor in its own interests to decide which bid should be accepted to go forward to further negotiations.

No legal restriction

In his decision, Lord Ericht noted the nature of the situation as a sale of the respondent’s own heritable property, saying: “It is clear from Stannifer Developments v Glasgow Development Agency (1998) that the common law duty of fairness does not apply when the authority is disposing of its own heritable property. The Lord Justice Clerk accepted that there was no legal restriction as to the manner in which a body could arrive at a decision as to the exercise of its power to sell its heritable property, and was unable to infer that in such circumstances there was a general duty to act fairly.”

As to whether the respondent properly engaged with the feedback from these sessions, he added: “Contrary to what is said by the petitioner, the respondent did make clear that there was a consensus against having a supermarket on the site. The detailed assessment of the bids which was attached to the report to the 15 August 2024 meeting as Appendix A, assessed the results of the consultation/engagement exercise when considering the Community Engagement outcome and stated ‘the community view was that retail development was less preferable’.”

Considering whether adequate reasons were given for the decision, Lord Ericht said: “Where a planning decision is taken in line with an officer’s report, there is an assumption that the reasons for the decision are set out in the report. I see no reason why that principle should not also apply where a decision in relation to a preferred bidder is taken in line with an officer’s report. The report sets out in detail the background to the decision and the assessment made by the PDWG, and has attached to it the assessments made by the PDWG and the respondent’s advisors.”

He concluded: “In the current case, the reasons for the collective exercise of the discretion of the committee are the reasons set out in the report to the committee. The report sets out the background to the decision, and the steps taken to date in the marketing process previously agreed by the committee, which had involved assessing bids for both non-supermarket and supermarket use. There is nothing in that report which would lead a fair-minded and independent observer to think there was a real possibility or risk that the respondent had predetermined the issue.”

The petition was accordingly dismissed.