Councillors were sent a confidential summary of the advice and told not to reveal its contents, but the document says the council’s own legal department and law firm CMS, both concluded that using emergency powers to introduce a Low Traffic Neighbourhood (LTN), involving road closures and junction alterations, was risky.
The summary says: ”It is considered by legal services and CMS that the proposed Temporary Traffic Regulation Order could be vulnerable to successful legal challenge given the specific circumstances.”
A council source said: "Because the LTN is part of a wider scheme that was considered before Covid, it is vulnerable to a successful legal challenge if they force it through under emergency powers relating to Covid. This as close as you’re going to get to legal advice that says ‘What you’re doing is illegal’.”
The advice echoes a legal opinion obtained by East Craugs residents group Get Edinburgh Moving.
The transport committee will decide on November 12 whether to proceed with the scheme or not.
And the source predicted the SNP/Labour coalition would now dump the proposals. "I would be astonished if the administration proceeds with this scheme given the legal advice. I’d have thought they would be looking for the most graceful way possible of retreating without totally losing their reputation."
But another source claimed transport convener Lesley Macinnes was unlikely to abandon the scheme altogether. “She’ll come back with some different plan.”
Tory transport spokesman Susan Webber said she hoped the administration would either withdraw the scheme or propose something “vastly different”.
She said other traffic measures should also be reviewed. “Just looking at the legal opinion the East Craigs group got, you could interpret that as meaning other schemes, either implemented or about to be implemented, could be challenged.”
And Labour councillor Scott Arthur said on his Facebook page : “Decisions made at the peak of lockdown may well have been proportionate, but the council needs to be certain they continue to have a firm legal basis. "
David Hunter, chair of Get Edinburgh Moving, said he would welcome the council dropping the LTN. “If the council takes notice of what appears to be very firm legal advice to drop the LTN we are enthusiastic about engaging with the council to talk about the challenges facing West Edinburgh on the traffic side.
“From a common sense perspective, if the council has received legal advice that broadly endorses ours it would seem bizarre to try to proceed along a path that it now seems obvious is not lawful or appropriate. If they do want to try to press ahead with those plans we’ll look at all avenues open to us to make sure that can’t happen.”
Transport convener Lesley Macinnes said the council had already tweaked designs in response to concerns. “We will continue to meet residents in the lead-up to the committee when we will make the final decision on the implementation of these temporary measures.”
Vice-convener Karen Doran said: “Together with the feedback and research gathered over recent weeks we will of course take into account the legal advice we have received.”