Still more questions than answers
(Stuart Crowther)

EDINBURGH CITY COUNCIL leader Donald Anderson will no doubt have been relieved when the Judicial Review before the Court of Session concluded that the Council had done nothing legally wrong in their dealings over the 'Lochend Butterfly' site adjoining Hibs' Easter Road Stadium.

The Councillor will also believe that the matter is now closed, saying on hearing the decision: "I am not surprised by the decision but I'm delighted that the case has gone in our favour. This will show the Edinburgh public, and in particular supporters of Hibernian, that the council has behaved absolutely scrupulously, and has been even-handed throughout the whole process."

Scrupulously? Even-handed? From the start of this sorry story of City Council indifference to common justice, the actions and words of the council were rarely even-handed and scrupulous adherence to common justice was never in evidence. Councillor Anderson may take solace from the judgement that legally, on one specific point, the council acted within the law but as for showing the Edinburgh public and in particular supporters of Hibernian that he and his council had acted in a morally correct manner, no Councillor Anderson, you have a long way yet to convince anyone.

That strip of land!

The actual legal case was perhaps fought on the wrong platform, but in the world of high-finance land deals it is difficult to argue moral right over legal right. The appeal lodged by Morston Assets, representatives of the consortium whose primary partner are the effectual owners of Hibernian F.C., was based solely on a claim that the council should have allowed a late bid for the Lochend Butterfly land. The basis that this should have been allowed was on best-value; the late bid was placed after it became apparent the consortium did not receive all the facts nor had a fair hearing in the bidding process.

In throwing out the legal challenge, Lord Eassie did not in any way consider the issues or conditions surrounding bids for the land, but only the challenge that under Scottish Law there was no legal reason for the council to consider a later bid by the consortium. Lord Eassie concluded that while it was the case that there was no legal reason why the council could not have accepted such a bid, the council had adhered to the instructions contained in Section 74 of the Local Government (Scotland) Act 1973 in having 'reasonably obtained' the best price for the land.

From this legal decision Councillor Anderson has taken considerable solace, but the fact remains that in spite of having won the legal battle, the council have far from convinced the public that they acted in a proper manner. They dug themselves into a hole, and even though they have attempted to cover the hole in political and legal dogma, they are far from convincing voters, a large number of whom are also Hibs fans, that they have acted in a way that deserves support come the next election!

While the football club itself has always kept a distance from the war that first erupted in May 2000, no-one should be left in any doubt the adverse effect the council actions will have on Hibernian Football Club. The council at that time threw out an outline planning application submitted by club owners HFC Holdings for a residential development on the land alongside the Lochend Butterfly site and Easter Road Stadium. In rejecting the application, the council cited that the application went against the 'Local Plan' policy that housing in that area would have insufficient amenity and would prejudice the survival of adjacent business use.

New East Stand plans scuppered (sns)

With that information in mind, when bids were sought for the council-owned Lochend Butterfly site HFC Holdings were interested. But they noted that the bids were to be 'unconditional' on any subsequent planning permissions being granted. With the knowledge obtained from the council that a housing development over the entire site would not receive planning permission, HFC Holdings joined with partners including Morston Assets to place such an unconditional bid, including with it supporting papers with plans for the entire site to build a world-class fitness centre and, crucially, a new East Stand for Hibernian F.C.

The consortium became aware of problems in their plans, when a leak to the press - later attributed to the council themselves - revealed that a rival bid, conditional on planning permissions being granted, was being accepted by the council. And after representations from Hibs fans informed of events via the Hibs.net web-site, this was confirmed ahead of any formal council decision in a reply by Councillor Maureen Childs to a number of Hibs supporters.

It transpired that the council had indeed accepted a conditional offer on the land, and saw nothing wrong in this. Councillor Anderson himself went on record to say that the consortium bid had in any case made no mention of plans to include Easter Road redevelopment, something the Councillor had to retract days later when his officials revealed that this was not in fact the case.

All of this in the event was legally correct, but questions still remain to be answered by Councillor Anderson. Having first proclaimed that bids had to be 'unconditional' of subsequent planning permission, the council sold to a bidder that attached just such conditions. And if that was not enough, the council then proceeded to change the Local Plan to allow housing to be built on the Lochend Butterfly site - after they had agreed to sell the land!

Cllr. Anderson - the villian?

This was underlined by the head of the consortium, Tom Harrison, when he told Hibs.net: "If the council had indicated high-density housing as a possibility in their brief for bids on the Lochend Butterfly, then many more potential developers than the three who ultimately applied would have thrown their hats into the ring with considerable bids.

"Our own bid would have been unlikely to succeed in that scenario, but at least the council tax payers of Edinburgh would have received maximum value. We felt the legal action was worth taking in the interests of ensuring that all of those involved in such processes in future can be assured transparency and fair play."

What has become clear is that transparency and fair play are not high in the considerations taken by Councillor Anderson and his colleagues. Someone looks set to make a great deal of money from the Lochend Butterfly saga, and while it is true that the city itself will receive much of that there is now bad feeling between those who acted for the council in a manner that has clearly left many Hibs fans and indeed council electors angry and confused. As leader of the City of Edinburgh Council, Mr Anderson still has a lot of explaining to do, elections are some way off yet which perhaps is another good piece of luck for the councillor. He might wish to use the time to repair some of the damage done, talking directly to everyone involved, from those in the consortium who were clearly so misled to Hibernian fans who have clearly been let down. That would perhaps be a start, and also an acknowledgement by the city that mistakes were made and steps are being taken to ensure they are not repeated.