Is a legal challenge in the offing for the Academy Street plans?
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Highland Council plans to spend millions of pounds to redevelop Academy Street could be subject to a judicial review, according to a letter seen by the Courier.
The bosses of the Eastgate Centre were so unhappy at the consultation they threatened to pursue a judicial review of the process adopted by the council.
But it has since been confirmed that a letter was sent to the council as well as members of the Inverness committee upping the stakes for the local authority.
It is the latest blow to project which has been dogged with acrimony and controversy since the proposals were announced.
Earlier today it was revealed the work would be put "on hold" after move to get the decision heard before a meeting of the full council.
Now we can reveal the details of the letter which help shed light on the legal hot water the council has potentially landed itself in.
Legal challenge
Acting on behalf of the Eastgate Centre is one of the largest and most respected commercial law firms in Scotland – Burness Paull.
On August 18, the law firm wrote to the council warning that if "proceeds with the current design without a proper consultation" then the Eastgate would consider that "unlawful" and "would challenge it without further notice."
The five page letter lays out three main complaints against the council, based largely on the major shift from Option A which was the basis of the consultation to Option B which only emerged in the report to the Inverness committee in November of last year. It argues that: "The council's decision to proceed with Option B would be unlawful for the following reasons:
- failure to carry out a proper consultation
- failure to carry out a proper impact assessment
- pursuing an improper purpose."
Regarding the first point, the letter states: "The council undertook to consult fully on the proposed changes to Academy Street. In doing so it was required to consult properly on accordance with the the Sedley Principles." But because Option B was not part of the original consultation the public was "not given any information on the proposed restriction of traffic."
On the second point, the letter says: "The council has not carried out a proper business or regulatory impact assessment on the effects of Option B." It added: "That is a significant material consideration in the determination of whether or not to proceed with Option B."
Finally, on the "improper purpose" aspect the case is made that the council is proceeding with the alternative untested Option B on the basis that it would otherwise "not be eligible for funding" which is considered to be an "improper purpose and it is unlawful."
Why this is a problem for the council
During the debate in November 2022 it was made clear that one vital ingredient in a successful bid to secure the cash is political support.
The council's development plans manager Scott Dalgarno warned that: “To be able to secure that funding we need to enter a competitive process with other councils across Scotland so the idea is that we use this decision to demonstrate to potential funders that we have the political support to move forwards.”
If the funding administrator Sustrans is concerned about something as fleeting as political support, it is highly likely that it would be deeply concerned about a legal challenge.
