The lawyer taking Aberdeen City Council to court over the city centre bus gates has revealed the five arguments he believes will prove the measures were put in place “unlawfully”.
Frustrated traders, led by veteran retailer Norman Esslemont, have crowdfunded support from Alasdair Sutherland for their battle against the restrictions they says have impacted trade.
The dispute over the controversial city centre traffic rules is expected to go to court within the next few months - unless the local authority backs down.
Central to Mr Sutherland's argument is that the bus gates, which were introduced under an Experimental Traffic Regulation Order (ETRO), was not an experiment at all.
The appeal was lodged in the Court of Session on 27th February. The court granted first orders for service on 4th March and the appeal was served on Aberdeen City Council on 5th March.
The council has 21 days to lodge answers in response. Should the council oppose the appeal, and following the submission of their response, the court will assign a date for a hearing on the appeal, which will likely be this summer.
The council’s decision to make the ETRO permanent has been challenged in five separate grounds.
The first ground concerns the Council’s failure to follow the correct procedure. The remaining four grounds concern the basis on which the Council decided to make the order.
1. Procedural breach
The first ground of appeal concerns the council’s failure to follow the correct procedure. Where a traffic order restricts access to roads to any class of vehicles for more than eight hours in any one day and the occupiers or owners of premises located on the affected road (or adjacent roads) object to such an order, the authority making the order is required to obtain the consent of Scottish Ministers.
Mr Sutherland contends that the provisions of the ETRO restricted access in this manner and so the council should have obtained approval from the Scottish Ministers before making it permanent. Having failed to do so, he says, means the order is unlawful.
2. Irrelevant considerations
In coming to its decision to make the order permanent, the council placed significant weight on the supposed risk of having to repay funding received from the Bus Partnership Fund to pay for the South College Street improvements.
Mr Sutherland says this is not a legitimate purpose for making a traffic order and not a relevant consideration. He says the council should not have taken this supposed risk into account to justify making the permanent order and acted unlawfully in doing so.
3. Unreasonable balancing of considerations
Mr Sutherland says that throughout the ETRO process, the council attached excessive importance to improvements to bus travel times across the city centre and not nearly enough to the economic impact on local businesses.
The responses from businesses and citizens to the consultation that ran for the first six months of the ETRO were overwhelmingly negative and their concerns were summarily rejected. He says the council did not adequately investigate the economic impact of the bus priority measures or place enough importance on the experiences of locals and businesses.
Instead, he says, 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.
4. No experiment
For any experimental traffic order to be valid, there must be a genuine experiment and the council must consider the “real world impact” of the ETRO.
Mr Sutherland says the council failed to do this. The ETRO was never genuinely experimental, and the council’s handling of the process, he believes, indicates it was minded to make it permanent regardless of the real world impact on citizens and local business.
5. Reasons for making the order permanent
The council has a statutory duty to provide reasons for making the permanent traffic order. The written reasons provided by the council, set out in an email to objectors dated 17 January 2025, simply confirmed that the ETRO will be made permanent, subject to the removal of the right turn ban from Union Terrace into Rosemount Viaduct, and set out the council’s resolution from its earlier committee meetings.
Mr Sutherland says no reasons were provided as to why the council reversed its original decision. He believes The council’s reasons are "inadequate and unintelligible".