17/12/2025
Turning the Screw
Odd DGC 'consents' statement as DoD notifies Whitesands Project contractor
Declaration of Dumfries
Dec 16, 2025
Substack link in comments
Strange thing on D&G Council’s recent 'Latest position' article. Seemingly, after the Scottish Government’s rubber stamp of the project, construction of the Whitesands Project is set to commence in spring of 2026, ‘subject to all necessary consents’.
What could that mean, one has to wonder? Are they leaving open the possibility that their hand may be forced to apply for s75(2) after all? Which would be most strange after all the denial that that was even necessary. Perhaps that denial was just the lashing out of a cornered snake?
Stranger still, according to DGC’s own website the project is now past stage 7, with scheme notification and statutory approvals supposedly at Stage 5/6.
Whatever that vague ‘necessary consents’ statement may mean, this afternoon DoD decided to notify the other major player in the (now) £68M scheme—namely the contractor, McLaughlin & Harvey Ltd.
Will DGC now be forced to do the right thing? See what you think. Here is the communication to McLaughlin & Harvey:
Notification of Legal Uncertainties surrounding the Whitesands Project
Dear Sirs,
Congratulations on Dumfries & Galloway Council’s recent decision to proceed with the Whitesands Flood Protection Scheme.
Arguments or opinions about the project aside, what is not debatable is that DGC have not processed the project in accordance with their statutory obligations under Scots law, leaving the entire project on legally uncertain, shaky ground.
I refer specifically to the Common Good assets affected by the project—namely the Whitesands, the Greensands, Dock Park and the Public Conveniences. These assets are inalienable Common Good, as admitted by DGC themselves in their response to FOI request 101000331257
https://www.whatdotheyknow.com/request/greensandswhitesands_common_good -3247479
By way of explanation, Common Good land/assets that are classed as inalienable may not be ‘appropriated’ (eg, change of use) or ‘disposed of’ (which includes demolition) without the local authority first applying to court for sheriff’s permission under s75(2) of the Local Government (Scotland) Act 1973.
Dumfries & Galloway Council admitted that they have not sought sheriff’s permission under s75(2) (see above link), citing ‘internal legal advice’ and refusing to divulge their reasons for departing from this statutory obligation, as you will see from the thread. They even refused to divulge the DATES that the legal advice was given.
DGC’s lack of transparency on this issue is now being investigated by the Scottish Information Commissioner.
To make matters worse, in a separate FOI, DGC also refused to give out any information regarding another legal obligation relating to Common Good—the requirement for a public consultation conforming to section 104 of the Community Empowerment (Scotland) Act 2015.
https://www.whatdotheyknow.com/request/section_104_representations -1979949
s104 invites ‘representations’ (opinions) from the public, granting the opportunity for feedback on the council’s plans to change the use of / sell / demolish/ etc Common Good assets—i.e. whether people are for it, or against it, and why.
Astonishingly, when asked to provide the s104 representations for the Whitesands Project—which are supposed to be publicly available (published) according to Scottish Government guidance—DGC responded with ‘we can neither confirm nor deny whether we hold the requested information‘.
Even more astonishingly, when subsequently asked if they had even carried out a s104 consultation, DGC’s response was ‘As noted in our original response, we can neither confirm nor deny whether we hold the requested information.’
This remarkable lack of transparency will also be subject to a Scottish Information Commissioner investigation.
In addition to the Scottish Information Commissioner investigations, Dumfries & Galloway Council will be reported to the Scottish Public Services Ombudsman for their maladministration of the Common Good elements of the Whitesands Project. Furthermore, I must inform you that DGC’s disregard for statutory compliance may give rise to legal challenges in the near future.
Why they simply don’t go ahead and apply for s75(2) sheriff permission, or why they are being so secretive about s104, would be guesswork on my part, but perhaps they are concerned that, were they to do so, the ensuing avalanche of public opposition to the Whitesands Project would be somewhat overwhelming.
I understand McLaughlin & Harvey to be a good company of reputable standing, and as such I believe you have every right to know of the legal—and thereby contractual—uncertainties surrounding this project, hence the need to notify you at this time.
Finally, I trust I can assume due diligence on your part prior to implementing the next phase—the construction—of the Whitesands Project.
Kind regards,
DoD
