John McCluskey: Council should not be allowed to rule on Haymarket proposals

Apart from the ordinary common law rules, the council is bound by the clear terms of the Human Rights Act. That act provides that when issues of rights, duties and obligation are in dispute between citizens and public authorities, the adjudication as to who wins and who loses must be carried out by an impartial and independent body.

On no view can the council be considered impartial and independent. In the first place, Tiger is to pay the council 2.8 million if planning permission is obtained. That arrangement is itself of doubtful legality as it purports to be made under Section 75 of the relevant planning act. However, as it is clear that the money is to go towards paying for the tram project, it is likely the payment cannot be legitimately made under Section 75. This matter may have to be resolved by the courts or the Ombudsman. The Section 75 agreement was negotiated in private.

Second, it has emerged that the council was more deeply involved in planning the project than was publicly known. At a consultation on 23 November, 2009, the chief executive of Tiger revealed the council had compelled the developer to alter its original plan and to apply for permission to build the hotel to 17 storeys, not 12 as Tiger initially had proposed. Thus it was the council that, behind the scenes, caused Tiger to adopt what was for many the most objectionable feature of the whole scheme.

Despite that, the city official who strong-armed Tiger into this position did not appear before the public inquiry. Many of us believe participation by the council as adjudicator on Tiger's new proposals would not pass the tests laid down by the Human Rights Act.

Many objectors had little confidence in the architects engaged by Tiger – not least because they had avowedly laughed at and ignored criticisms proffered by the lay citizenry. It has yet to be disclosed if city officials were responsible for suggesting to Tiger that these architects be engaged.

Against this background, I suggested at the November meeting that, as happened before the magnificent New Town was built 200 years ago, the city should hold a competition and, with the assistance of others, pick the best entry. In the 18th century it took only three months to hold and complete the competition – won by James Craig. It would still be the best way to proceed.

One other important point: the height of the proposed hotel was only one of several serious faults identified at the public inquiry. The objectors are not going to be silenced by slicing off the top of the hotel. The objectors do not oppose development of the site; they will support a tasteful development that accords with the genuine interests of Edinburgh and the citizens directly affected.

Finally, on a personal note, I did not "spearhead" the objections, as your article suggests. The real work was carried out by the Cockburn Association, with many volunteers contributing to its work.

The Dalry Colonies Residents' Association did a magnificent job of exposing how local interests were being trampled underfoot. I was fortunate in that I was able to help in drawing public attention to the damage that the city, the developer and its professional assistants were proposing to inflict upon our city.

• John McCluskey is a former High Court judge.