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Cite as: [2000] ScotCS 212

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OUTER HOUSE, COURT OF SESSION

P430/2000

OPINION OF LORD MACFADYEN

in Petition of

COUNTY PROPERTIES LIMITED

Petitioners;

against

THE SCOTTISH MINISTERS

Respondents:

for

Judicial Review

________________

Petitioners: Steele, Q.C., Armstrong; DLA

Respondents: Haddow, Q.C., Brodie; Scottish Executive

25 July 2000

Introduction

[1] The petitioners are the owners of heritable subjects at 105-107 West Regent Street and 112 Wellington Street, Glasgow ("the subjects"). In this petition they seek to bring under judicial review (1) a decision by the Scottish Ministers to call in an application for listed building consent which they made to the City of Glasgow Council ("CGC") in respect of the subjects, (2) a decision by the Scottish Ministers appointing a reporter to hear a public inquiry in relation to that application, and (3) certain decisions said to have been made by the reporter at a procedure meeting held in relation to the public inquiry. Answers to the petition have been lodged on behalf of the Scottish Ministers ("the respondents"), and at the first hearing of the petition I heard submissions from counsel on behalf of the petitioners and on behalf of the respondents.

The Planning and Procedural History

[2] The subjects are a category A listed building located in the Glasgow Central Conservation Area. They were originally built as a town house, and were extended to form the offices of the well-known architect, Alexander Thomson (known as "Greek Thomson"). How far he was responsible for the design of the extension is not clear from the material placed before me. By the 1990s the subjects had deteriorated. Planning permission and listed building consent for their demolition and the erection of a replacement building were originally granted in 1992. Further applications for renewal of that planning permission and listed building consent were made in 1997, and were granted by CGC on 7 July 1997. The permission and consent were each subject inter alia to a condition (Z1.01) that "The development shall be implemented in accordance with [certain identified drawings]". Three of the drawings mentioned in the condition are produced (Nos. 7/20, 7/21 and 7/22 of process), and show that the style of the replacement building for the erection of which permission and consent were given was similar to that of the existing subjects.

[3] In 1999 the petitioners applied for planning permission and listed building consent for the demolition of the subjects and the erection of a new five-storey office building. Drawings illustrating the replacement building contemplated in those applications (Nos. 7/23(a) to (e) of process) show that that building was to be in modern style, very different from the existing subjects. The petitioners aver that the respondents did not exercise their power in terms of section 46 of the Town and Country Planning (Scotland) Act 1997 to call in the application for planning permission. Planning permission was granted by CGC on 13 July 1999. The respondents aver that CGC did not consult with them (as required by Article 15(1)(j)(vi) of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 before granting that application, and that consequently, there having been no advice from them against granting it, they were not notified of CGC's intention to grant planning permission in terms of paragraph 13 of the Schedule to the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997.

[4] The petitioners aver that by letter dated 6 September 1999 from Historic Scotland (No. 6/4 of process), CGC were informed that the respondents had considered the application for listed building consent and decided that the proposals were a matter of importance which they ought to decide. The background to that letter is filled in by the averment in the respondents' answers that on 19 July 1999 (i.e. six days after they had granted the related planning permission) CGC notified Historic Scotland of the petitioners' application for listed building consent. The time for response allowed by section 12(2) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 ("Planning (LBCA) Act") would have expired on 15 August 1999 (No. 7/9 of process), but was extended in accordance with section 12(2)(b) (No. 7/10 of process). The letter of 6 September 1999 narrated that it was being written in accordance with a direction by the respondents, and stated:

"The Scottish Ministers consider that these proposals are a matter of importance which they ought to decide themselves. They accordingly hereby direct under the powers conferred on them by section 11(1) of the [Planning (LBCA) Act] that the application shall be referred to them instead of being dealt with by the planning authority."

The respondents' decision was communicated to the petitioners by CGC on 13 September 1999 (No. 6/5 of process).

[5] By letter dated 25 January 2000 (No. 6/6 of process) the respondents notified the petitioners that they had appointed Mr G. M. M. Thomson ("the reporter") to hold a public inquiry and to report with respect to the application for listed building consent. A pre-inquiry procedure meeting of interested parties was held by the reporter on 14 March 2000. It was attended by representatives of the petitioners, CGC and Historic Scotland.

[6] In the meantime, on 19 November 1999, the petitioners had lodged an application for planning permission relating to the subjects (No. 7/11 of process). That application sought to amend condition Z1.01 of the 1997 planning permission so as to substitute for the reference to the drawings originally mentioned in that condition a reference to the drawings approved in connection with the 1999 planning permission. The effect of that application, if granted, would be to convert the permission to demolish and rebuild in the original style into a permission to demolish and replace with a five story modern office block. CDC did not determine the application within the statutory time limit, and the petitioners therefore appealed to the respondents under section 47(2) of the Town and Country Planning (Scotland) Act 1997 in respect of the deemed refusal. The respondents subsequently (a) decided (i) that a public local inquiry would be held in respect of that appeal, (ii) that it would be conjoined with the listed building application, and (iii) that they would determine the case, and (b) appointed the reporter to conduct the public local inquiry and submit a report to them (No. 7/14 of process). That decision was not, however, formally taken until 2 May 2000, long after the procedure meeting held by the reporter in respect of the application for listed building consent and mentioned in paragraph [5] above.

[7] The reporter's minute of the procedure meeting is dated 29 March 2000 (No. 6/7 of process). It recorded, in paragraph 2.1, that there was a single application before the respondents, the application for listed building consent. It further recorded, in paragraph 2.2, that the appeal against the deemed refusal of the application to amend the 1997 planning permission had been submitted. There was some discussion of whether that appeal had yet been "validated". Whether it had or not, it is clear that at that date the reporter had not yet been appointed to conduct any proceedings in respect of the application to amend the 1997 planning permission. Nevertheless, in the course of the meeting the solicitor for Historic Scotland expressed the view in relation to that application that it was not lawful to substitute drawings for one replacement scheme for another as it "constituted a material change outwith the degree of variation permitted by section 64 of the [Town and Country Planning (Scotland)] Act." The reporter then records that he referred to paragraph 2.11 of the Memorandum of Guidance on Listed Buildings and Conservation Areas (No. 7/15 of process), and continues, in paragraph 3.7 of the minute, in the following terms:

"Accordingly, he agreed with [the solicitor for Historic Scotland] that the replacement scheme was a material change from that for which there is an extant consent. He considered the application merely to replace plans within an existing consent to be incompetent and that it was not open to him to consider the application without taking into account the effect of the demolition of the existing listed structure. As this was also an integral part of the application before Scottish Ministers for listed building consent, this was central to the public inquiry to follow."

It is the "decisions" expressed in that part of the minute that constitute the third subject of the petitioners' application for judicial review.

Article 6(1)

[8] The first ground upon which the petitioners attack the validity of both the respondents' decision to call in the application for listed building consent and their decision to appoint the reporter to conduct the public inquiry is that those decisions were ultra vires by virtue of section 57(2) of the Scotland Act 1998 in respect that they constituted acts incompatible with the petitioners' rights under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").

[9] Section 57(2) provides inter alia as follows:

"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights ...".

"The Scottish Ministers" is the collective term for the members of the Scottish Executive (section 44(2)), and section 57(2) therefore regulates the powers of the respondents. "The Convention rights" include the rights set out in Article 6 of the Convention (section 126(1) of the Scotland Act 1998 and section 1(1)(a) of the Human Rights Act 1998).

[10] Article 6(1) of the Convention provides inter alia as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

[11] The petitioners aver that the respondents are not, and the reporter is not, an independent and impartial tribunal. Their averment as to the position of the respondents is in the following terms:

"The decision by the Respondents to determine the application was made as a result of the objection by Historic Scotland an executive agency of the Respondents. Accordingly the Respondents cannot be impartial and separatim cannot be seen to be impartial."

The averments as to the position of the reporter are in the following terms:

"That the Respondents' Reporter is a part time Reporter employed by the Respondents on an ad hoc basis to conduct inquiries on behalf of the Respondents and prepare a report for the Respondents. That the Respondents' Reporter is remunerated for said work by the Respondents";

and

"As hereinbefore condescended upon [the reporter] is an ad hoc Reporter appointed at the discretion of the Respondents. He receives remuneration directly and only when appointed by the Respondents. Separatim he cannot be impartial in circumstances where Historic Scotland, an executive agency of the Respondents is the body responsible for opposing the application and separatim cannot be seen to be impartial."

[12] The respondents answer the averments dealing with their own position in the following way:

"Admitted that Historic Scotland is an executive agency of the Respondents. ... Admitted that the Scottish Ministers are not an independent and impartial tribunal in terms of Article 6.1 of [the Convention] in the circumstances of this case" (emphasis added).

They answer the averments dealing with the position of the reporter as follows:

"Admitted that the Respondents' Reporter is remunerated by the Respondents for his work as a reporter. ... The said Reporter, Mr Thomson was one of the full-time reporters employed by the Respondents until his retiral on 31 March 2000. He was remunerated as a full-time reporter. He has held appointment as a part-time reporter since 1 April 2000. ... The Reporter was not empowered, nor required, to determine [the application for listed building consent]";

and

"Admitted that the Reporter is not an independent and impartial tribunal under explanation and averment that his role is to hold a public inquiry into the application for listed building consent and the application for planning permission ... and to report on those applications to the Respondents ..." (emphasis added).

The respondents go on, however, after making those admissions, to aver inter alia that the petitioners' right of appeal to this court from their decision satisfies the requirements of Article 6(1).

[13] Notwithstanding the respondents' admission that neither they nor their reporter constituted a "independent and impartial tribunal" within the meaning of Article 6(1) in the circumstances of the present case, Mr Steele, senior counsel for the petitioners, sought in the course of his submissions to highlight the circumstances of the present case which resulted in that situation. He pointed to the following facts:

that Historic Scotland is an executive agency of the respondents;
that Historic Scotland had opposed the grant of listed building consent which CGC, the body with the primary statutory obligation to deal with the application, had decided to grant;
that the respondents had chosen to exercise their discretion under section 11(1) to call the application in for decision by themselves;
that the intimation of the respondents' decision to call the application in was made on their behalf by Historic Scotland;
that the reporter -

was appointed by the respondents,
served on a part-time basis,
was paid by the respondents,
was subject to assessment of his performance by the respondents;

that there were no safeguards in respect of the employment of the reporter analogous to those imposed by the Lord President in relation to temporary judges (see Clancy v Caird 2000 SLT 546 at 550F-G);
that there were no such safeguards as were mentioned in Findlay v United Kingdom (1997) 24 EHRR 221 at 246, paragraph 78;
that Historic Scotland were represented at the pre-inquiry meeting by a solicitor, and would be represented at the public inquiry, in opposition to the application;
that the respondents' solicitor advised both the respondents and Historic Scotland;
that witnesses for Historic Scotland would give evidence at the public inquiry in opposition to the application; and
that the respondents would take the decision on whether or not the application should be granted.

[14] In these circumstances the petitioners characterised the respondents' decision to call in the application for listed building consent as the exercise of the statutory discretion under section 11(1) of the Planning (LBCA) Act to bring about the result that an application opposed by the respondents' executive agency, Historic Scotland, was to be determined by the respondents themselves after an inquiry conducted by their appointee, the reporter. For this purpose the reporter and the respondents were to be regarded as component parts of a single tribunal, the former hearing the evidence and submissions, and the latter making the decision. That meant that the petitioners' civil rights in relation to their property, the subjects, would be determined by a tribunal which was conceded not to be independent and impartial. The decision to call in the application was therefore incompatible with the petitioners' rights under Article 6(1). The focus was on the decision to call the application in for decision by the respondents. It was that decision that was incompatible with the petitioners' Convention rights, although it would only be once the substantive decision on the application had been taken that the petitioners' civil rights would be determined and their Convention rights contravened. The petitioners' right of appeal to this court from the substantive decision by the respondents would not serve to secure compliance with Article 6(1), because of the restricted scope of the appeal. Its scope did not permit full review of matters of fact or (of particular relevance in the present case) planning judgement.

[15] In support of that submission, Mr Armstrong, junior counsel for the petitioners, referred first to two Scottish cases on Article 6(1). The first of these was Starrs v Ruxton 2000 JC 208, in which it was held that temporary sheriffs were not an independent and impartial tribunal within the meaning of Article 6(1). The second was Clancy v Caird 2000 SLT 546, in which the contention that a temporary judge of the Court of Session was not an independent and impartial tribunal within the meaning of Article 6(1) was rejected. Mr Armstrong pointed out that in neither of those cases was it suggested that the availability of a right of appeal secured compliance with Article 6(1).

[16] Mr Armstrong then turned to a series of cases decided in the European Court of Human Rights ("ECtHR"). He referred first to Findlay v United Kingdom (1997) 24 EHHR 221, a case which concerned proceedings before a court-martial. The circumstances were that a single officer, the convening officer, was responsible for convening the court-martial, for appointing all those who participated in it, and for confirmation of the sentence. The ECtHR pointed out (at paragraph 76 of the Judgment) that in order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. It concluded that the court-martial was not an independent and impartial tribunal, relying in the circumstances (a) that the members of the court-martial appointed by the convening officer were all subordinate in rank to him, (b) that the convening officer had the power to dissolve the court-martial either before or during the trial, and (c) that the decision of the court-martial was not effective until ratified by the convening officer, who had power to vary its sentence. At paragraph 79 it added:

"Nor could the defects referred to above be corrected by any subsequent review proceedings. Since the applicant's hearing was concerned with serious charges classified as 'criminal' under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirements of Article 6(1)."

In Albert and Le Compte v Belgium (1983) 5 EHHR 533, a case concerning medical disciplinary proceedings, the ECtHR said (in paragraph 29 of the Judgment):

"Since the 'contestation' (dispute) over the decisions taken against them concerned a 'civil right', the applicants were entitled to have their cases (in French: 'causes') heard by a 'tribunal' satisfying the conditions laid down in Article 6(1). In many member States of the Council of Europe, the duty of adjudicating on disciplinary offences is conferred on jurisdictional organs of professional associations. Even in instances where Article 6(1) is applicable, conferring powers in this manner does not in itself infringe the Convention. Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)."

An example of that approach in operation is to be found in the third case that Mr Armstrong cited, namely Obermeier v Austria (1991) 13 EHRR 290. In that case the applicant was suspended then dismissed by his employer. Proceedings came before the Disabled Persons Board at first instance, then before the Provincial Governor on appeal. It was common ground that neither of these could be regarded as an independent tribunal within the meaning of Article 6(1). There was a further appeal to the Administrative Court, and the ECtHR held that it could be considered sufficient under Article 6(1) only if the Administrative Court could be described as a "judicial body that has full jurisdiction" within the meaning of Albert and Le Compte v Belgium. In paragraph 70 of the Judgment the ECtHR said:

"[T]he Administrative Court can only determine whether the discretion enjoyed by the administrative authorities has been used in a manner compatible with the object and purpose of the law. This means, in the final result, that the decision taken by the administrative authorities, which declares the dismissal of a disabled person to be socially justified, remains in the majority of cases, including the present one, without any effective review exercised by the courts.

In disputes concerning civil rights, such a limited review cannot be considered to be an effective judicial review under Article 6(1). There has therefore been a violation of Mr Obermeier's right of access to a court."

[17] Finally, Mr Armstrong turned to Bryan v United Kingdom (1996) 21 EHRR 342. That case was concerned with enforcement notice proceedings under the [English] Town and Country Planning Act 1990. The planning authority served an enforcement notice requiring demolition of two buildings which they contended had been erected without planning permission. The applicant appealed to the Secretary of State on four of the grounds specified in section 174(2) of the Act, namely (a) that planning permission ought to be granted for the development, (b) that the matters alleged in the notice did not constitute a breach of planning control, (g) that the steps required by the notice were excessive, and (h) that the period specified in the notice was too short. The issue under ground (b) was whether the buildings were designed for the purpose of agriculture, the planning authority contending that they were houses, and the applicant that they were barns. An inspector was appointed to conduct an inquiry and determine the appeal. He rejected the appeal on grounds (a), (b) and (g), but upheld it on ground (h) to the extent of allowing a longer period for compliance with the notice. His decision against the applicant on ground (b) proceeded on a finding in fact that the buildings as originally constructed were houses, not barns. The applicant then appealed to the High Court under section 289 of the Act, which provides for appeal on a point of law. Although the appeal originally challenged the inspector's decision on ground (b), that aspect of it was abandoned, apparently because it was accepted that it involved no point of law (see page 347, paragraph 13). The ECtHR held that the inspector was not an independent and impartial tribunal. The limited ground on which it did so is set out in paragraph 38 of the Judgment as follows:

"It is true that the inspector was required to decide the applicant's planning appeal in a quasi-judicial, independent and impartial, as well as fair, manner. However, ... the Secretary of State can at any time, even during the course of proceedings which are in progress, issue a direction to revoke the power of an inspector to decide an appeal. In the context of a planning appeal the very existence of this power available to the Executive, whose own policies may be in issue, is enough to deprive the inspector of the requisite appearance of independence, notwithstanding the limited exercise of the power in practice ... and irrespective of whether its exercise was or could have been at issue in the present case.

For this reason alone, the review by the inspector does not of itself satisfy the requirements of Article 6 of the Convention, despite the existence of various safeguards customarily associated with an 'independent and impartial tribunal'".

So far as the appeal to the High Court was concerned, the ECtHR (at paragraph 40) identified the issue as whether it satisfied the requirements of Article 6(1) as far as the scope of its jurisdiction was concerned. Beginning at paragraph 44 the ECtHR noted:

"that the appeal to the High Court, being on 'points of law', was not capable of embracing all aspects of the inspector's decision concerning the enforcement notice served on Mr Bryan. In particular, as is not infrequently the case in relation to administrative law appeals in the Council of Europe Member States, there was no rehearing as such of the original complaints submitted to the inspector; the High Court could not substitute its own decision on the merits for that of the inspector; and its jurisdiction over the facts was limited.

However, apart from the classic grounds of unlawfulness under English law (going to such issues as fairness, procedural propriety, independence and impartiality), the inspector's decision could have been quashed by the High Court if it had been made by reference to irrelevant factors or without regard to relevant factors; or if the evidence relied on by the inspector was not capable of supporting a finding of fact; or if the decision was based on an inference from facts which was perverse or irrational in the sense that no inspector properly directing himself would have drawn such an inference.

Furthermore, in assessing the sufficiency of the review available to Mr Bryan on appeal to the High Court, it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the context of the dispute, including the desired and actual grounds of appeal.
In this connection the Court would once more refer to the uncontested safeguards attending the procedure before the inspector: the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness and impartiality. Further, any alleged shortcomings in relation to these safeguards could have been subject to review by the High Court.
In the present case there is no dispute as to the primary facts. Nor was any challenge made at the hearing in the High Court to the factual inferences drawn by the inspector, following the abandonment of his objection to the inspector's reasoning under ground (b). The High Court had jurisdiction to entertain the remaining grounds of the applicant's appeal, and his submissions were adequately dealt with point by point. These submissions ... went essentially to questions involving 'a panoply of policy matters such as development plans, and the fact that the property was situated in a Green Belt and Conservation Area.

Furthermore, even if the applicant had sought to pursue his appeal under ground (b), the Court notes that, while the High Court could not have substituted its own findings of fact for those of the inspector, it would have had the power to satisfy itself that the inspector's findings of fact or the inferences based on them were neither perverse nor irrational.

Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by Article 6(1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe Member States. Indeed, in the instant case, the subject matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgement in the regulation of citizens' conduct in the sphere of town and country planning.

The scope of review was therefore sufficient to comply with Article 6(1)."

[18] As developed by Mr Steele, the primary submission for the petitioners was that in the circumstances of the present case the tribunal of first instance itself (i.e. the reporter and the respondents taken together) required to comply with Article 6(1). That there are cases in which the availability of appellate review will not correct deficiencies in the first instance procedure was vouched by Findlay v United Kingdom (paragraph 79). That should be held to be so in the present case because not only was the tribunal of first instance admitted not to be independent and impartial, but also the manner and respects in which the tribunal failed to be independent and impartial (see paragraph [13] above) were so significant that they could not be cured by the availability of an appeal procedure, even if the appellate tribunal had "full jurisdiction" in the sense indicated in Albert and Le Compte v Belgium.

[19] Mr Steele's alternative submission was that if a failure of independence and impartiality on the part of the tribunal of first instance was to be cured by the availability of an appeal, the appellate tribunal required to be a judicial body with full jurisdiction that did provide the guarantees of Article 6(1) (Albert and Le Compte v Belgium, paragraph 29; Obermeier v Austria, paragraph 70; c.f. Zumtobel v Austria (1993) 17 EHRR 116, paragraphs 31 and 32). In the particular circumstances of the present case, the issue which the tribunal required to determine was essentially one of judgement (variously described as "value judgement", "planning judgement" or "aesthetic judgement") as between the two schemes for the replacement of the listed building, the one involving replacement with a building of similar appearance and the other involving replacement with a modern building. That is an issue which could not effectively be reviewed by this court on appeal under section 58 of the Planning (LBCA) Act. In the present case, therefore, it could be said now that this court, entertaining an appeal under section 58, would not be a judicial body "with full jurisdiction" in the requisite sense to constitute compliance with Article 6(1).

[20] Mr Steele submitted that Bryan v United Kingdom was distinguishable on its facts from the present case. In Bryan (at paragraph 44; see also paragraphs 25 and 26) the ECtHR recognised that the jurisdiction of the High Court over the facts was limited. The jurisdiction of this court is similarly limited. It was scarcely surprising, however, having regard to the Inspector's findings on ground (b) (see page 345), that that ground was not maintained before the High Court. It was therefore not surprising that in the circumstances of that case the ECtHR took the view that the High Court was able to exercise "full jurisdiction". Nor was it surprising that the Court added the comment that it did in the second part of paragraph 47 ("Furthermore ..."). It did not follow, however, that the statutory right of appeal was sufficient to secure compliance with Article 6(1) in all circumstances and whatever the deficiencies of the tribunal of first instance. Properly understood, Bryan v United Kingdom supported the position of the petitioners in the present case.

[21] In response to the petitioners' submissions under Article 6(1) Mr Brodie, junior counsel for the respondents, advanced two arguments, which were adopted and expanded by senior counsel, Mr Haddow. The first was to the effect that the petitioners' challenge to the validity of the proceedings was premature. The respondents' decision under section 11(1) to call in the application for listed building consent involved no determination of the petitioners' civil rights within the meaning of Article 6(1). The decision which would effect such a determination would be the substantive decision as to the disposal of the application for listed building consent. In Fayed v United Kingdom (1994) 18 EHRR 393 the ECtHR said (at paragraph 56 of the Judgment) that for Article 6(1) to come into play the proceedings in question must be directly decisive of civil rights or obligations, mere tenuous connections or remote consequences not being sufficient. In that case a distinction was drawn between investigative and dispositive proceedings (paragraph 61). In the present case, the decision to call in the application for listed building consent was not dispositive of the petitioners' civil rights. It was no more than a decision about how the dispositive decision should in due course be made. It could not therefore constitute a contravention of Article 6(1). Nor could it be said at this stage that the eventual dispositive decision would involve a contravention of Article 6(1). That could only be determined in light of the whole circumstances surrounding the eventual substantive decision. The respondents' decision to call in the application could only be said to be incompatible with a Convention right (and thus ultra vires by reason of section 57(2) of the Scotland Act) if it was presently clear that the eventual substantive decision would inevitably contravene a Convention right. That could not at present be affirmed. The application for listed building consent might be granted. In that event any contravention of the petitioners' rights under Article 6(1) would be merely theoretical and would give rise to no justiciable issue. Even if the application were refused, it could not be said that there would inevitably be a contravention of Article 6(1). Even if the petitioners were right that the jurisdiction of the court was not in every respect full, it might turn out that the issue on which an appeal turned was one in respect of which the court's power of review was unrestricted. It would therefore be premature to hold at this stage that the procedural decision to call in the application for listed building consent was incompatible with a Convention right and therefore ultra vires.

[22] The respondents' second argument was that by virtue of the right of recourse to this court under section 58 of the Planning (LBCA) Act there would, despite the admission that the respondents and the reporter were not independent and impartial, be no contravention of Article 6(1), and consequently the decisions under challenge were not incompatible with Convention rights. The United Kingdom regime of planning law allows for appeal to the courts in specified circumstances. Although couched in terms of appeal on a point of law or (as in section 58 of the Planning (LBCA) Act) in terms of questioning the validity of a decision on the ground inter alia that it was not within the powers of the legislation, the right of appeal is not confined to pure questions of law, but does permit to a considerable extent the consideration of matters of fact. In Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 Lord President Emslie, in considering legislation expressed in terms similar to those of section 58, said (at 347-348):

"A decision of the Secretary of State ... will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it ... is so unreasonable that no reasonable Secretary of State could have reached ... it" (emphasis added).

The aspects of the statutory appellate jurisdiction highlighted in that quotation enable the court to review to a sufficient degree the approach of the decision-maker to matters of fact. So far as those aspects of the planning process in respect of which there is no statutory right of appeal are concerned, judicial review is available on substantially the same grounds. Reference was also made to the Scottish Planning Encyclopaedia, paragraphs A.5034 et seq. It was recognition of the width of the appellate jurisdiction in those respects that led the ECtHR in Bryan v United Kingdom (where it was clear from paragraphs 24 to 26 and 44 that it had a full and accurate understanding of the limits of the jurisdiction) to say what it did in the second and third parts of paragraph 47. The ECtHR regarded an appeal within that scope as being in line with the scope of judicial control of administrative decisions found throughout member states, and as a sufficient power to review matters of fact to secure compliance with Article 6(1). Applying that approach in the present case, it could not be said, in face of the availability of the statutory appeal under section 58 from the ultimate substantive decision by the respondents, that there would be a contravention of Article 6(1). The respondents' admissions (see paragraph [12] above) involved a recognition that, without a sufficient right of appeal, there would be a contravention of Article 6(1), but it was not accepted that with the right of appeal available under section 58 there would be such contravention. On the contrary, what was said by the ECtHR in Bryan v United Kingdom was applicable generally to the right of appeal to the courts in planning law.

[23] The question for determination in this petition is whether it can be said at this stage of the planning process that the decision of the respondents to call in the application for listed building consent was incompatible with a Convention right, namely the petitioners' entitlement to have their civil rights as proprietors of the subjects determined by an independent and impartial tribunal. It was not disputed by the respondents that their ultimate substantive decision on the application for listed building consent would involve a determination of the petitioners' civil rights within the meaning of Article 6(1). The respondents were in my opinion correct in their submission that the decision made by them under section 11(1) to call in the application for listed building consent was not itself a decision which involved a determination of the petitioners' civil rights, and therefore could not constitute an infringement of Article 6(1). But the petitioners' case is not that that decision involved such a determination and such an infringement. Rather their contention is that a decision which, as Mr Steele put it, deprived them of the opportunity of having their civil rights (the application for listed building consent) determined by an independent and impartial tribunal (namely CGC), and subjected them instead to the decision of a tribunal (comprising the reporter and the respondents) which was ex concessu not independent and impartial, was incompatible with (albeit not a present breach of) their Convention rights and was therefore beyond the respondents' powers by virtue of section 57(2) of the Scotland Act. In my opinion the petitioners were right to formulate the issue in that way. It is, in my view, not an answer to the petitioners' challenge to the validity of the decision under section 11(1) to say that it involves no present infringement of Article 6(1). A decision which brings about the situation that a future decision will involve infringement of Article 6(1) is itself, in my view, incompatible with a Convention right. Just as in Starrs v Ruxton the Lord Advocate (through the Procurator Fiscal) acted in a way that was incompatible with the accused's Convention rights by proceeding to trial before a temporary sheriff because the temporary sheriff's verdict would not have been a determination by an independent and impartial tribunal, so in the present case the respondents have acted in a way that was incompatible with the petitioners' Convention rights if, by calling in the application for listed building consent, they have brought about a situation in which that application will be determined by a tribunal which is not (whether in itself or by virtue of an adequate right of appeal) an independent and impartial tribunal.

[24] The question therefore comes to be whether it can be affirmed at this stage that the substantive decision on the petitioners' application for listed building consent will be determined by a tribunal which does not satisfy the requirements of Article 6(1). It is necessary to consider first the petitioners' submission that they are entitled to have their application dealt with by a tribunal which itself satisfies the requirements of Article 6(1) as to independence and impartiality, and that even if this court has full jurisdiction to review the respondents' decision, that does not cure the lack of independence and impartiality on the part of the respondents and the reporter. It seems to me to be clear that there are some circumstances in which in order to satisfy the requirements of Article 6(1) it is necessary for the tribunal itself to be independent and impartial; but that there are others in which, although the tribunal itself is not independent and impartial, the existence of a right of appeal to an independent and impartial judicial body with full jurisdiction to review the determination will suffice to secure compliance with Article 6(1). In Lester and Pannick, Human Rights Law and Practice at paragraph 4.6.23 (which Mr Brodie cited in the course of his submissions) the distinction is drawn in the following terms:

"Where a decision determinative of an individual's 'civil rights and obligations' is taken by the executive, or by an adjudicatory body not complying with Article 6(1), the article requires (in accordance with the right of access to a court) that the state provide a right to challenge the decision before a judicial body with full jurisdiction providing the guarantees of Article 6(1). If such an appeal is provided, there will be no violation of the article. In contrast, where 'courts of the classic kind' (rather than administrative tribunals) are concerned, art 6 must be fully complied with at the trial stage."

The absence of any discussion of rights of appeal in Starrs v Ruxton and Clancy v Caird is consistent with that analysis. It is evident in Findlay v United Kingdom (at paragraph 79) that it was the characterisation of the charges faced by the applicant as serious criminal charges that led to the conclusion that the defects in the independence and impartiality could not be corrected by any review proceedings. The court-martial was, because of the nature of its jurisdiction, akin to a "court of the classic kind". This, however, is not a case involving a "court of the classic kind". The determination of the application for listed building consent is to be made by the executive. Prima facie, therefore, the case falls into the first rather than the second category identified in the passage quoted above from Lester and Pannick. The basis on which the petitioners argue that in the present case the lack of independence on the part of the respondents and the reporter should be regarded as infringing their rights under Article 6(1), irrespective of whether this court can exercise full jurisdiction in an appeal under section 58, is that the admitted lack of independence and impartiality is serious, indeed blatant. While I accept that the lack of independence and impartiality on the part of the respondents is in the present case clear, since what is involved is the respondents adjudicating on an issue between their own executive agency and the petitioners, I am not persuaded that on that account I should hold that no form of review procedure could save the respondents from infringement of Article 6(1). The respondents' decision on the application for listed building consent will be an administrative one. I consider that I should adhere to the view adopted in cases such as Albert and Le Compte v Belgium, Obermeier v Austria and Bryan v United Kingdom, that in the case of an administrative decision-maker compliance with Article 6(1) may be secured by the availability of review of the decision before a judicial body that has full jurisdiction and does provide the guarantees of the article.

[25] Appeal to this court under section 58 undoubtedly brings the respondents' decision under review before a judicial body that provides (so far as its jurisdiction goes) the guarantees required by Article 6(1). The contrary was not argued. What is in issue between the parties is whether under section 58 this court exercises "full jurisdiction" in the sense contemplated in the authorities. The scope of review available under legislation couched in the same terms as section 58 was summarised by Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland in the passage quoted in paragraph [22] above. The respondents argue that such review is, notwithstanding its limitations, sufficient to constitute "full jurisdiction" sufficient to satisfy the requirements of Article 6(1). They rely heavily, for support for that argument, on what was said by the ECtHR in Bryan v United Kingdom at paragraph 47. The petitioners, on the other hand submit that the circumstances of the present case are materially different from those of Bryan v United Kingdom, particularly in relation to (a) the circumstances which render the respondents not an independent and impartial tribunal, and (b) the nature of the issues which will fall to be determined in relation to the petitioners' application. There is, in my view, force in these aspects of the petitioners' submissions. It is apparent from Bryan v United Kingdom (at paragraph 45) that in assessing the sufficiency of review these are matters that require to be taken into account. While, therefore, I am of opinion that Mr Steele went too far in submitting that Bryan v United Kingdom positively supports the petitioners' submissions, it is in my view necessary when considering the observations made by the ECtHR in paragraph 47 to bear in mind the particular circumstances of that case. It appears to me that the ECtHR may have underestimated the significance of the fact (which appears to have been accepted - see paragraph 13) that the reason for Mr Bryan's abandonment of his appeal to the High Court in respect of the ground (b) issue was the limited scope for appeal on matters of fact. Be that as it may, however, the general point made in paragraph 47 was that in specialised areas of law such as planning it may be sufficient for an appellate tribunal to be confined, on matters of fact, to satisfying itself that the tribunal of first instance reached a conclusion that was neither perverse nor irrational. That, it was said, was particularly so when the facts had been established in quasi-judicial proceedings which were governed by many of the safeguards required by Article 6(1). While I have no doubt that the ECtHR in paragraph 47 intended to make a point of general application, there are, in my view, a number of points of distinction between the category of case which the court had in mind and the particular circumstances of the present case. The following points can be made:

While the proceedings before the reporter in the present case will no doubt be quasi-judicial in the same way as the proceedings before the inspector in Bryan v United Kingdom were noted to be (see paragraph 46), the reporter in the present case will not in those proceedings "establish" the facts in the same sense as did the inspector, who was himself making a delegated decision; the decision in the present case will be made by the respondents.
While in Bryan v United Kingdom the objection to the independence and impartiality of the inspector was the appearance of lack of independence created by the Secretary of State's power to revoke his appointment (see paragraph 38), in the present case the objection to the independence and impartiality of the tribunal of first instance is not merely the reporter's lack of tenure, but much more fundamentally the fact that the respondents will be deciding an issue between the petitioners and their own executive agency, Historic Scotland - they will be judex in sua causa.
While Mr Steele in my view oversimplified the issue which the respondents will have to determine - it will not in my view be simply a matter of aesthetic preference for one or other of the replacement proposals - it is true that matters of aesthetic and planning judgement will form a major part of what has to be decided. The scope for this court in an appeal under section 58 to interfere with the respondents' planning judgment is even more restricted than the scope for review of matters of pure fact.

These circumstances combine, in my view, to constitute substantial ground for holding that the general observations made by the ECtHR in paragraph 47 of the Judgment in Bryan v United Kingdom do not apply in the present case.

[26] It was argued by the respondents that it was only if it could be affirmed at this stage that appeal under section 58 would inevitably be inadequate for the purpose of Article 6(1) that it would be appropriate to hold in this process that the decision to call in the application for listed building consent was incompatible with Convention rights. I do not consider that that is correct. The respondents have conceded that the effect of that decision is that the petitioners' application will be determined by a tribunal which is not independent and impartial. The onus is therefore in my view upon them to show that there exists a right of appeal to a court with full jurisdiction, which will satisfy in a secondary way the requirements of Article 6(1). It is not disputed that section 58 affords a right of appeal to a judicial body. The respondents have not, however, satisfied me that in the circumstances of this case this court in such an appeal would have full jurisdiction to review the substantive issues in the case. It is no doubt right, as Mr Haddow argued, that it may turn out that no appeal is required, or that the issue raised on appeal will be one which it is within the court's power to consider fully. But having regard to the nature of the case, it seems to me to be quite clear that the respondents' decision may go against the petitioners on the central issue of planning judgement as to the replacement building. If that happens, the scope of appeal under section 58 is such that it cannot, in my view, be said that in that event there would be a judicial body with full jurisdiction to review that decision in such a way as to satisfy the requirements of Article 6(1). It is the petitioners' Convention right to have their civil rights determined by an independent and impartial tribunal. In my view the respondents' decision to call in the application for their own decision has brought about a situation in which the determination of the petitioners' civil rights will be made by the respondents, who are admittedly not independent and impartial, and against whose decision there is only a limited right of appeal to this court. The limitations on the right of appeal are such that it may well be impossible for this court, although indisputably an independent and impartial tribunal, to bring those qualities to bear on the real issues in the case. The suggestion that the adequacy of the right of appeal cannot be judged until the grounds on which the petitioners seek to bring the respondents' decision under review are identified is in my view not only unsound in principle but also thoroughly impractical. As Mr Steele submitted, it would be unreasonable to require the petitioners to defer their challenge to the validity of the call-in decision until after the inquiry process had run its course, a decision had been made, and it was possible to say for certain whether in the circumstances the statutory appeal afforded an adequate review to comply with Article 6(1). Considerations of both time and expense make that approach unattractive.

[27] In the result I am satisfied that in the circumstances of this case determination of the petitioners' application for listed building consent by the respondents after an inquiry conducted by the reporter would not satisfy the requirements of Article 6(1). It follows, in my opinion, that the respondent's decision to call in that application was incompatible with the petitioners' Convention rights, and therefore ultra vires of the respondents by virtue of section 57(2) of the Scotland Act. Subject therefore to the plea of waiver discussed below, I am of opinion that the petitioners are entitled to reduction of that decision. It is in my view a necessary consequence of the reduction of that decision that the appointment of the reporter also falls to be reduced.

Irrationality

[28] The second ground upon which the petitioners challenge the validity of the respondents' decision to call in the application for listed building consent is that that decision was unreasonable and perverse. In considering an application for listed building consent the respondents are obliged by section 14(2) of the Planning (LBCA) Act to "have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses". In the present case, both planning permission and listed building consent for the demolition of the subjects already exist in terms of the permission and consent granted in July 1997 (Nos. 6/1 and 6/2 of process). In addition, building warrant for the demolition has been granted (No. 6/10 of process). Further, planning permission has now been granted for the erection of the five-storey modern office block now proposed to replace the subjects (No. 6/3 of process). The respondents did not call in that application. In these circumstances, the principle of demolition of the existing subjects having been accepted, and planning permission for the replacement building currently proposed having been granted without intervention on the part of the respondents, it was irrational to call in the application for listed building consent.

[29] The respondents argued that it was erroneous to regard the 1997 permission and consent as settling the principle that the subjects should be demolished. In those permissions, the demolition of the subjects and the erection of a replacement building in similar style were inextricably linked, as was made clear by conditions attached to the 1997 permission and consent (Nos. 6/1 and 6/2 of process) which stipulated (in condition Z1.01) that the development should be implemented in accordance with the identified drawings which show the "similar style" replacement building, and (in condition NC<f>) that evidence of a firm intention to carry out the redevelopment, in the form of a signed building contract or the like, should be provided before commencement of the demolition work. The requirement of replacement with a building in similar style was a "trade-off" for demolition. It was therefore appropriate to revisit the question of demolition when replacement with a five-storey modern office block was proposed. The position of Historic Scotland, in response to informal consultation, was set out in No. 7/2 of process in the following terms:

"In our Inspectorates view, the issue here is whether a building which is quite substantially the work of Alexander Thomson, partly for himself as his own office, may be demolished. If it can be shown beyond reasonable doubt that the building is so structurally flawed that it cannot be saved, we would suggest that large sections of the existing composition might be incorporated into the new structure, at the very least. In our view your Council should revisit this scheme from the point of view of conserving the existing building."

That view was reported in the CGC committee reports relating to the application for planning permission and the application for listed building consent (see Nos. 7/6 and 7/7 of process). CGC failed, however, to undertake the proper consultation process in relation to the application for planning permission (see paragraph [3] above). In these circumstances no adverse inference should be drawn against the respondents in respect of the fact that they had not called in the application for planning permission. Moreover, a number of representations against the new proposal had been made by interested bodies (the Architectural Heritage Society of Scotland, the Alexander Thomson Society, the Glasgow Architecture Committee and the Royal Fine Art Commission for Scotland (Nos. 7/1 and 7/3 - 5 of process)), which required to be taken into account. Regard also had to be had to the Memorandum of Guidance on Listed Buildings and Conservation Areas 1998 (No. 7/15 of process), paragraphs 2.10 and 2.11, and to NPPG 18 (No. 7/16 of process), paragraphs 47 et seq. In all these circumstances, it could not be said that it was irrational for the respondents to call in the application for listed building consent.

[30] Mr Steele explained that when the petition was presented the petitioners had understood had the respondents had been properly consulted about the 1999 application for planning permission, and had chosen not to call it in. The position remained that they had no direct information on that, but he accepted that if the circumstances as to consultation and notification were as the respondents maintained, that weakened the case for regarding the call-in decision as irrational.

[31] In my opinion it cannot be said that the respondents' decision to call in the application for listed building consent was irrational. It is in my view correct that the 1997 permission and consent cannot be regarded as settling irrevocably the principle that the demolition of the subjects is acceptable, irrespective of the nature of the proposed replacement building. What they authorise is the demolition of the subjects provided they are replaced in a particular way. When it is proposed to replace them with a wholly different style of building, it is for consideration afresh whether in that changed context demolition is acceptable. It is clear that the position adopted by Historic Scotland in the informal consultation process was that the question of demolition should be revisited. Other interested bodies have also made representations about the new proposal. No inference of inconsistency can be drawn against the respondents on account of their not calling in the application for planning permission when their position is that they were not formally consulted about that application or notified of CGC's intention to grant it. In my view it remained within the discretion conferred upon the respondents by section 11(1) of the Planning (LBCA) Act, reasonably exercised, to decide to call in the application for listed building consent.

Adequacy of Reasons

[32] The petitioners aver that the reason given by the respondents for their decision to call in the application for listed building consent was "unreasonable and perverse and incapable of proper interpretation". The reason is contained in the passage from Historic Scotland's letter of 6 September 1999 (No. 6/4 of process) quoted in paragraph [4] above. In short it was that the respondents "consider that these proposals are a matter of importance which they ought to decide themselves". Mr Armstrong's submission was that the petitioners should be informed of the reasons why the respondents wished to decide the matter for themselves, so as to enable them to consider whether or not to challenge the decision. The reason given did not make that clear. He accepted, however, that the respondents were under no statutory duty to give reasons.

[33] For the respondents, reliance was placed, first, on the fact that there was no statutory obligation to give reasons for a decision to call in an application for listed building consent and, secondly, on the submission that the reason given was in the circumstances perfectly adequate. There would, it was submitted, be a risk, if more were said, that there would be an appearance of having prejudged the merits of the application.

[34] In my opinion there is no substance in this aspect of the petitioners' submissions. There is no statutory duty laid on the respondents to give reasons for the discretionary administrative decision which they may make under section 11(1). While there may be circumstances in which a duty to give reasons arises at common law in the absence of a statutory duty, Mr Armstrong made no attempt to enter upon a discussion of the authorities bearing on that point. I am therefore not persuaded that the respondents had a duty to give reasons for their decision. In any event, it seems to me that the reason given, that the respondents regarded the application as raising a matter of importance, is perfectly adequate to explain the position to the petitioners and CGC.

The Reporter's Decisions

[35] In the final branch of their case the petitioners challenge the validity of certain "decisions" which they aver that the reporter made at the procedure meeting held on 14 March 2000. The "decisions" which they attack are set out in paragraph 3.7 of the minute of the procedure meeting (see the passage quoted in paragraph [7] above). Those "decisions" bore to relate to the application for planning permission (No. 7/11 of process) by which the petitioners sought to amend the 1997 planning permission so as to refer to the drawings submitted in connection with the 1999 applications. A submission was made by the solicitor for Historic Scotland that it was not lawful to substitute one replacement scheme for another, because that constituted a greater degree of change than was permitted by section 64 of the Town and Country Planning (Scotland) Act 1997. That submission was misdirected, because the petitioners' application did not purport to be made under section 64. The reporter, however, recorded in the minute that he agreed that the new replacement scheme was a material change. He went on to record that he considered that the application merely to replace the plans was incompetent, and that it was not open to him to consider the application without taking into account the affect of demolition of the existing structure. The petitioners' complaint was in substance that, since the application No. 7/11 of process was not before the reporter at that stage, his "decisions" were unreasonable in that they disclosed prejudgement of issues that only came before him for consideration after the deemed refusal appeal was conjoined with the called-in application for listed building consent and he was appointed to conduct the conjoined inquiry. For the respondents it was submitted that the reporter had done no more than indicate that the question of demolition would in any event have to be considered at the inquiry. Whatever he may have said about the deemed refusal appeal, it could not constitute decisions in relation to that appeal, because until he was appointed to hear the conjoined inquiries the appeal was not before him. In light of that submission, Mr Steele ultimately sought to rely on the reporter's conduct as expressed in paragraph 3.7 of the minute more as an illustration of lack of impartiality, than as a separate decision to be reviewed.

[36] In my view it is clear that what the reporter said at the procedure meeting could not constitute a decision in relation to the deemed refusal appeal. He was not appointed to hear the inquiry into that appeal until 2 May 2000. Until then he had no power to deal with it. It seems reasonable to infer that, although he had not been formally appointed, he understood, by 14 March 2000, that he was going to be conducting the inquiry into the deemed refusal appeal. Faced with a submission about it, he expressed a view on the point made. I do not consider that it is right to hold that in so doing the reporter demonstrated partiality, but it would have been more appropriate for him to refrain from expressing any view until the matter was properly before him. Be that as it may, however, I am of opinion that there were no "decisions" made by the reporter in respect of which it would be appropriate to pronounce the declarator sought in paragraph 2(v) of the petition, or the reduction sought in paragraph 2(vi).

Waiver

[37] In their second and third pleas-in-law the respondents plead that the petitioners are barred by mora, taciturnity and acquiescence et separatim waiver from challenging the validity of the respondents' decisions to call in the application for listed building consent and appoint the reporter to conduct the inquiry in relation to it. In the course of the hearing, counsel for the respondents abandoned those pleas so far as based on mora, taciturnity and acquiescence. The only submission which they sought to maintain was that the petitioners had in the circumstances waived their right to challenge those decisions.

[38] Mr Brodie for the respondents, in introducing his submissions on this point, referred to a passage in Clyde and Edwards on Judicial Review, paragraph 13.23, in which, in discussing acquiescence, the authors say:

"Where there has been action from which acceptance of a situation and the surrender of a right may be inferred, the more appropriate term is that of waiver, which is also a question of fact (Armia v Daejan 1979 SC (HL) 56). In such a case it is not necessary to plead prejudice (Banks v Mecca Bookmakers 1982 SC 7 ...)"

Mr Brodie's submission was that in correspondence with CGC in September and October 1999 (Nos. 7/17 - 7/19 of process) the petitioners first indicated that their preference would be for the called-in application for listed building consent to be dealt with by written submissions, then changed their mind and indicated that they would prefer a public inquiry, but expressed no challenge to the fact that the application had been called in. No such challenge was expressed until the procedure meeting on 14 March 2000. In these circumstances it was to be inferred that the petitioners had accepted the validity of the call-in, and had abandoned their right to challenge it. Mr Brodie sought to derive further support for that submission from Clancy v Caird, in which it was held that, had the objection to the independence and impartiality of the temporary judge been well founded, the pursuer would have been held to have waived his objection by proceeding to proof rather than taking the point when the case was first allocated to the temporary judge (see per Lord Sutherland at paragraph [14], page 554D-K, and Lord Coulsfield (with whom Lord Penrose agreed) at paragraphs [52] to [56], pages 564K - 565H).

[39] In response to that argument, Mr Steele made a number of points. In the first place, he pointed out that part of the objection to the reporter's lack of independence and impartiality was that he held a part-time appointment, and that was so only from 1 April 2000. That aspect of the objection was therefore not available earlier, and could not be said to have been waived. So far as the position of the respondents was concerned, the petitioners' concern was that the issue of demolition should not be reopened. It was only in early 2000, when Historic Scotland re-inspected the subjects, that it became clear to the petitioners that the intention was to reopen the issue of demolition. Thereafter, the matter was raised at the first opportunity, namely at the procedure meeting. Clancy v Caird was distinguishable, because there the pursuer had allowed the case to go to proof without raising his objection. The equivalent situation would only have arisen if the petitioners had allowed the inquiry to proceed without taking objection.

[40] It seems to me that the question which the respondents' second and third pleas pose is whether it can be inferred from the petitioners' actings that they have tacitly but unequivocally given up or abandoned their right to maintain the objections which they now seek to maintain to the validity of the respondents' decisions to call in the application for listed building consent and to appoint the reporter to conduct the public inquiry (Armia v Daejan; Clancy v Caird per Lord Coulsfield at 565B). I note that in Clancy v Caird, the court discussed a number of ECtHR cases on waiver in the context of Article 6(1), but these were not cited to me.

[41] There is, in my view force in Mr Steele's submission that, in so far as the petitioners' case turns on the part-time nature of the reporter's appointment, there can be no question of waiver, because that situation only arose on 1 April 2000. But if the matter were to turn on that point, it would be necessary to identify to what extent the petitioners' case depended on that factor. Because of the respondents' admissions that neither they nor the reporter were independent and impartial, that issue was not fully explored in the parties' submissions. I am not persuaded that there is much force in Mr Steele's point that it was only when Historic Scotland re-inspected the subjects in early 2000 that it became clear that it was proposed that the issue of demolition be re-opened. As Mr Haddow pointed out, that was Historic Scotland's stated position in their response to informal consultation in April 1999 (No. 7/2 of process), and their view to that effect was recorded in the CGC committee reports in July 1999 (Nos. 7/6 and 7/7 of process). In any event, it seems to me that the question of whether demolition was to be in issue was relevant to the petitioners' challenge to the respondents' decisions on the ground of irrationality (which I have rejected), but not to the challenge under Article 6(1) (which is the challenge which I have held to be well-founded). So far as the Article 6(1) point is concerned, I am of opinion that it could have been taken as soon as the decisions which were to be challenged had been taken. Since the point could have been raised (as it has been) in a petition for judicial review, it is not in my view sound to maintain (as Mr Steele did) that the procedure meeting was the first occasion on which the point could be taken. In the end, therefore, it seems to me that the narrow point raised by the respondents' second and third pleas is whether the inference of unequivocal abandonment of the right to challenge the call-in decision and the decision to appoint the reporter should be drawn from the mere fact that, without stating their challenge, the petitioners exercised their right of election as to whether the called-in application should be dealt with by written submissions or by public inquiry. Having regard to the nature of the present case and the identity of the parties (c.f. Clancy v Caird per Lord Coulsfield at 565G-H), I do not consider that it would be right to infer abandonment of an important and substantial objection to the validity of the respondents' actings on such a narrow and technical basis. It might, in my view, have been different if, as in Clancy v Caird, the substantive hearing (in that case the proof, in this case the public inquiry) had been allowed to take place to a substantial extent without the objection being expressed. In the circumstances actually relied on in the present case, I am of opinion that the petitioners are not to be inferred to have waived the objection which I have held to be sound.

Result

[42] I shall accordingly -

to reflect (a) my rejection of the respondents' case of waiver and (b) their abandonment of their case of mora, taciturnity and acquiescence, repel the respondents' second and third pleas-in-law;
to reflect my rejection of the challenge to the "decisions" of the reporter, repel the petitioners' second plea-in-law;
to reflect my rejection of the petitioners' argument based on irrationality, but my acceptance of their argument based on Article 6(1), sustain the petitioners' first plea-in-law in part only, to the effect of -
finding and declaring that the respondents' decision to determine the petitioners' application for listed building consent in respect of the subjects at 105-107 West Regent Street and 112 Wellington Street, Glasgow, and their appointment of Mr G. M. M. Thomson to hold a public inquiry and report with respect to the said application, were ultra vires of the respondents by virtue of section 57(2) of the Scotland Act 1998 in respect that they constituted acts incompatible with the petitioners' rights under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and
granting decree of reduction in respect of the said decision and the said appointment.