Council lawyer grilled for dismissing Aberdeen traders ‘who put in a fiver’ to bring bus gates battle to court

Aberdeen City Council’s top lawyer has been taken to task for trying to “deny” desperate traders and citizens their right to club together and challenge the city centre bus gates in court.

The Court of Session heard from campaigners looking to scrap the controversial roads measures today, as well as the city’s defence.

But Dan Byrne, the KC from Morton Fraser MacRoberts representing the council, looked to convince the judges that the campaign “frontman” had no right to complain about the bus gates on Market Street, Guild Street and Bridge Street.

His first argument was that veteran west end retailer Norman Esslemont should not be heard because his Thistle Street shop sits outside the zone impacted by the once-temporary traffic shake-up.

Mr Byrne said it was “tenuous in the extreme” for the court to consider the 82-year-old’s challenge, especially because he did not officially object to the experimental road traffic order (Etro).

“Individuals who are affected [by the bus gates] have chosen not to launch an appeal.

“They may be willing to put a fiver in [to Mr Esslemont’s crowdfunder] but they may not be willing to take the step of litigation.”

‘Are bus gate crowdfunders irrelevant?’

It was not an argument easily accepted by the Lord President of the Court of Session.

The country’s most senior judge, Lord Pentland, pondered if Mr Esslemont’s £65,000 fundraising effort – on top of his position as part of our Common Sense Compromise campaign – gave him legal standing.

“Would you say it’s irrelevant?” he asked.

It prompted a tense back and forth, as tales from The P&J archives were rehearsed while the court debated who had the right to bring a case forward.

William Walton’s fight to stop the Aberdeen Western Peripheral Route being built near his Westhill home?

Mr Byrne said it was relevant as the long-time objector had to fight for a legal definition of who could fight proposals.

Fellow judge Lady Wise’s more recent case law of Robert Bruce v Moray Council – a fight to save woodland from housebuilding on account of wildlife?

A different kettle of fish.

“Ospreys can’t litigate,” the council KC stated.

“In that case Mr Bruce required to step in and advocate on behalf of the ospreys.

“Here there are no ospreys, there are individuals who have a title and interest to pursue an appeal if they wish to challenge.”

Court claim: ‘Tenuous’ to argue Norman Esslemont has suffered at hands of Aberdeen bus gate decision-making

But the Lord President suggested that affected traders had flocked together.

Market Street hotelier Mary Martin, an outspoken critic of the bus gates outside her Douglas Hotel and beyond, had contributed to the cause.

That was not enough to convince Mr Byrne, who argued it was “tenuous in the extreme” to look at Mr Esslemont’s financial backers.

He argued it was for Mr Esslemont – and Mr Esslemont alone – to demonstrate he had suffered “substantial prejudice” as a result of how the Etro was made permanent, as he had brought the case forward.

“None of the [allegedly affected] properties are properties he has an interest in. He’s neither the owner, occupier, or lessee of any of the properties affected by the alleged failure to fulfil the requirement of [the Road Traffic Regulation Act 1984],” Mr Byrne said.

“I should make it clear, because it may not have been brought to my Lords’ and my Lady’s attention, [Mr Esslemont] is not an objector, he’s made no objection [officially, to the council].”

Lord President: ‘Norman Esslemont is the frontman’ of Aberdeen bus gate court challenge

His assertion was probed.

The Lord President asked: “Doesn’t doesn’t that tend to ignore the realities of how litigation of this type may have to be funded?

“Small businesses may find it very difficult to launch a challenge of this nature but combining together and finding a person who is willing to take the lead and organise the campaign is just a reasonable step to allow the matter to be brought before the court?”

Told “there is nothing to stop those individuals participating by taking the step,” in response, the judge snapped back.

“Well, there is. There is the financial reality, that’s why the crowdfunding campaign has been organised, obviously,” the Lord President added.

“I understand the point you’re making entirely based on quite a strict reading of the regulation, but shouldn’t the court be rather slow to deny access to parties in these circumstances?

“In effect, while nominally Mr Esslemont is the appellant, it’s quite clear he’s here in a representative capacity as – putting it somewhat loosely – the front person for the campaign.”

Council KC: ‘People may have been willing to put a fiver in but not to take it to court’

Mr Byrne conceded that the court “may take that view” and he “may not be successful” in convincing the three judges, but reiterated that a “consortium of shopkeepers” should have led the action.

He said: “Now one might infer that they don’t want to take proceedings for whatever reasons one might speculate…

“There may be practicalities the court have some sympathy with but the fact is is that this applicant has chosen to launch an appeal, other individuals who are affected have chosen not to.

“They may be willing to put a fiver in or a contribution in, but they may not be willing to take the step of litigation.

“And that means that we’re left with the provision in [the Road Traffic Regulation Act 1984].”

He was reminded he was relying on a law written some 20 years before online crowdfunders were commonplace.

How the campaign’s day in court panned out

Mr Esslemont crowdfunded more than £65,000 to raise the court action, which argues the council should have sought Scottish minister approval to make the changes permanent.

His Burness Paul legal team, fronted by Alasdair Burnet KC in court, also argue that Aberdeen City Council was wrong to consider the threat of Transport Scotland clawing back “intrinsically linked” funding for South College Street roadworks ahead of the vote.

The much-anticipated hearing lasted for around five hours.

The Lord President promised to share his ruling “as soon as is practical”.

[Source: Press and Journal]