Campaigners lose Court of Session appeal against ETZ proposal for Aberdeen park

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Aberdeen City Council did not act unlawfully in its proposals to turn a park into an Energy Transition Zone (ETZ), Scotland’s highest court has ruled.

Publishing his ruling from the Court of Session in Edinburgh, Lord Douglas Fairley refused the petition from Friends of St Fittick’s Park which argued the local authority failed its legal duty to perform equality impact assessments.

The park, in Torry, is the site of a proposed ETZ, an industrial hub tailored to support the transition to green energy.

Campaigners argued the council did not discharge its responsibilities as a “listed authority” under the Equalities Act, with lawyers acting on behalf of campaigners stating that a full council meeting on September 11 2023, where the proposals were discussed, triggered this clause.

In response, the council said it did “no more than give express authority” for officers to investigate what developments of St Fittick’s Park may involve.

In his ruling published on Wednesday, Lord Fairley accepted the response from lawyers acting on behalf of Aberdeen City Council, who argued the petitioner’s remarks were “premature” as the steps taken by officials did not yet necessitate an equality impact assessment.

He said: “If the petitioner’s argument about that issue was correct (whether they had a duty to carry out equality impact assessment) it would necessarily imply that the respondent was under a duty to carry out an assessment of impact without knowing what proposals it was assessing.

“The clear purpose of the resolution of September 11 2023 was to facilitate the collection of relevant information about what development of the park by ETZ … might entail.

“Logically, the ingathering of such information needed to take place before any impact assessment could be carried out.

“I therefore agree with the respondent’s submission that in passing resolution 9.6 of 11 September 2023, it did not breach any of the duties incumbent upon it under section 149 of the Equality Act 2010 or regulation 5 of the 2012 regulations.”

Lord Fairley therefore refused the petition.

A spokesperson for ETZ Ltd, the private sector-led and not-for-profit company spearheading the transition, said: “We welcome today’s Court of Session judgment.

Through our Community & Coast programme, ETZ Ltd are firmly committed to enhancing wider greenspaces in proximity of the Energy Transition Zone in co-design and collaboration with the local community.

“This will include significant improvements to St Fittick’s Park, Tullos woods and the coastal path corridor as part of the project’s wider regeneration ambitions.

“It is important to highlight that we have proposed utilising, subject to planning, a significantly reduced area of development to St Fittick’s Park with just over half of the Aberdeen City Council proposed sites being developed equating to less than a third of the park overall. ”

Richard Caie, from Friends of St Fittick’s Park, said the group was “dismayed but not discouraged” by the ruling, and that it would continue to oppose the development.

“Friends of St Fittick’s Park are disappointed that the Supreme Court did not find in our favour. We are dismayed but not discouraged. We will continue to oppose the industrialisation of the community’s beloved park by all legal means,” he said.

“As a small group of volunteers we are proud of our efforts so far and, unlike ETZ Ltd, we do not have tens of millions of pounds of taxpayers’ money to promote a big PR campaign.

“Our thanks go to the Environmental Rights Centre for Scotland, Friends of the Earth Scotland, Mike Dailly and the Govan Law Centre and many, many more who recognise the grave injustice being perpetrated on our community and who have helped us along the way.”

An Aberdeen City Council spokesperson said: “Aberdeen City Council notes today’s decision by the Court of Session.”