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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dumfries & Galloway Council, Re Application For Judicial Review [2000] ScotCS 217 (2 August 2000)
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Cite as: [2000] ScotCS 217
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD MACKAY OF DRUMADOON In the Petition of DUMFRIES AND GALLOWAY COUNCIL Petitioners; against SCOTTISH MINISTERS Respondents; for Judicial Review of the decision of the Scottish Ministers of 28th October 1999 to take effect on 1st April 2000 to transfer to the Petitioners responsibility for management and maintenance of certain de-trunked roads and new side roads in Dumfries and Galloway in connection with the upgrading of the M74(M) special road. ________________ |
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Petitioners: Brailsford, Q.C., Bowen; Anderson Strathearn, W.S.
Respondents: Murphy; Solicitor to the Scottish Executive
.2 August 2000
The decisions challenged
[1] In this Petition for Judicial Review, the Petitioners, Dumfries and Galloway Council, seek judicial review of the decisions of the Respondents, the Scottish Ministers, dated 28 October 1999, to transfer to the Petitioners, with effect from 1 April 2000, responsibility for the management and maintenance of certain de-trunked roads and new side-roads in Dumfries and Galloway. The transfers are related to the construction of sections of the M74 motorway.
[2] In terms of the Roads (Scotland) Act 1984 (as amended), ("the 1984 Act"), the Petitioners are the local roads authority for roads lying within the local authority area known as Dumfries & Galloway. By virtue of Section 2 of the 1984 Act and Section 53 of the Scotland Act 1998, the Respondents are under a statutory duty to manage and maintain, within Scotland, trunk roads (as defined by the Trunk Roads Acts 1936 and 1946) and special roads provided by them (as defined by the Special Roads Act 1949).
[3] This Petition for Judicial Review was lodged on March 2000. It seeks reduction of two Notices dated 28 October 1999. These Notices run in the name of the Respondents, the Scottish Ministers. The Notices were issued in the form of letters addressed to the Petitioners' Director of Roads. The First Notice contained paragraphs in the following terms:-
" Roads (Scotland) Act 1984
Transfer of Roads to Roads Authority
M5 DBFO Project
I am directed by the Respondents to serve notice on your Council that the new lengths of motorway provided by him under Schedule 1 to the Glasgow-Carlisle Special Road A74(M) (Harthrope-Middlegill Special Road) Scheme 1994 and the Glasgow-Carlisle Special Road A74(M) (Middlegill-Beattock Special Road) Scheme 1994 were opened for the purposes of through traffic on 30 April 1999.
In accordance with the provisions of the said order, lengths of the old road specified in the Schedule to the Glasgow-Carlisle Trunk Road (A74) (Middlegill-Beattock De-trunking) Order 1994 shall cease to be trunk road from 1 April 2000 and the Council shall become roads authority therefore (sic).
I am also directed to serve notice on your Council that the new side roads to be provided by the Respondents described in Schedule 1 of the Glasgow-Carlisle Special Road A74(M) Harthrope-Middlegill (Side Roads) Order 1994, the Glasgow-Carlisle Special Road A74(M) Harthrope-Middlegill (Side Roads) (No. 2) Order 1994, and the Glasgow-Carlisle Special Road A74(M) Middlegill- Beattock (Side Roads) Order 1994, have also been opened for the purposes of through traffic and shall be transferred to the Council or their successors as roads authority from 1 April 2000".
The other Notice was in similar terms. It stated:-
" Roads (Scotland) Act 1984
Transfer of Roads to Roads Authority
M6 DBFO Project
I am directed by the Respondents to serve notice on your Council that the new lengths of motorway provided by him under Schedule 1 to the Glasgow-Carlisle Special Road A74 (M) (Beattock-Dinwoodie Green) Special Road scheme 1992 were opened for the purposes of through traffic on 14 May 1999.
I am also directed to serve notice on your Council that the new side roads to be provided by the Respondents described in Schedule 1 to the Glasgow-Carlisle Special Road A74 (M) (Beattock-Dinwoodie Green) (Side Roads) Order 1992 have also been opened for the purposes of through traffic and shall be transferred to the Council or their successors as roads authority from 1 April 2000."
The practical effect of these Notices is to transfer to the Petitioners with effect from 1 April 2000 responsibility for the management and maintenance of the de-trunked length of road and the new side roads specified in the Orders, referred to in one of the Notices, and responsibility for the management and maintenance of the new side-roads specified in the Order, referred to in the other Notice.
Background to dispute
[4] The factual background to the dispute between the parties is as follows. For several years the Scottish Office, and, more recently, the Respondents have been engaged in upgrading the A74 Trunk Road. Sections of motorway have been constructed, replacing lengths of the A74 Trunk Road with what is now known as the M74. The motorway works for the sections of the M74, lying between Harthrope to the North, (at the boundary of the areas of Dumfries and Galloway Council and South Lanarkshire Council), and Junction 16 at Cleuchbrae, to the South, are covered by a number of Orders, which were made by the Secretary of State for Scotland, in terms of the 1984 Act. Those Orders include (a) The Glasgow-Carlisle Trunk Road (A74) (Middlegill-Beattock De-Trunking) Order 1994, (b) The Glasgow-Carlisle Special Road A74(M) Harthrope-Middlegill (Side Roads) Order 1994, (c) The Glasgow-Carlisle Special Road A74(M) Harthrope-Middlegill (Side Roads) (No. 2) Order 1994, (d) The Glasgow-Carlisle Special Road A74(M) Middlegill-Beattock (Side Roads) Order 1994, (e) The Glasgow-Carlisle Special Road A74(M) (Beattock to Dinwoodie Green) Side Roads Order 1992, (f) The Glasgow-Carlisle Special Road A74(M) (Beattock-Dinwoddie Green) Special Road Scheme 1992, (g) The Glasgow-Carlisle Special Road A74(M) (Harthrope-Middlegill Special Road) Scheme 1994, (h) The Glasgow-Carlisle Special Road A74(M) (Middlegill-Beattock Special Road) Scheme 1994 and (i) The Glasgow-Carlisle Special Road A74(M) (Beattock to Dinwoodie Green) Side Roads (Variation) Scheme 1998.
[5] At certain points, between Harthrope and Junction 16, the M74 has followed the route of the old A74. In other places the M74 follows a completely new route. As the motorway works have progressed, it has been necessary to construct new side roads, inter alia to cross over and underneath the new motorway and to link the motorway with "A" Classified, "B" Classified and Unclassified roads, within the Dumfries and Galloway area. It has also been necessary to improve existing roads, managed and maintained by the Petitioners, and to stop up certain accesses onto such roads. The construction works carried out have taken account of the plan to de-trunk certain sections of the original A74 Road, which remain in existence.
[6] The construction works, authorised by the Orders I have listed, have taken many years. They have been carried out, in terms of a Private Finance Initiative, by Autolink Concessionaires (M6) plc ("Autolink"). Autolink entered into a Design-Build-Finance-Operate contract with the Scottish Office, in terms of which the company undertook to design and construct the motorway and all the other road works authorised by the Orders.
[7] The construction works, including the motorway and the side roads covered by the Orders, were completed during 1999. As is set out in the Scottish Ministers' Notices of 28 October 1999, the special roads covered in The Glasgow-Carlisle Special Road A74(M) (Harthrope-Middlegill Special Road) Scheme 1994 and The Glasgow-Carlisle Special Road A74(M) (Middlegill-Beattock Special Road) Scheme 1994 were opened to through traffic on 30 April 1999 and the special road covered in The Glasgow-Carlisle Special Road A74(M) (Beattock-Dinwoodie Green) Special Road Scheme 1992 was opened to through traffic on 14 May 1999.
[8] Autolink is under a contractual obligation to the Respondents to remedy any snags that may arise in the construction works, during the Defects Correction Period, which expires on 25 October 2000. In terms of its contract, the company also has an obligation to maintain the M74 motorway over a period of 30 years.
[9] Throughout the time that Autolink have been engaged in designing and constructing the road works covered by its contract with the Scottish Office, officials of the Roads Departments of the Petitioners (and of their statutory predecessors) have taken a keen interest in the project. Over that period of time, there have been regular meetings and correspondence between those officials and the officials of the Scottish Office and the Respondents. Throughout, the officials of the Scottish Office and the Respondents have sought to preserve, as far as possible, the commercial confidentiality of Autolink's contract, to which the Petitioners are not a party. Nothing in the productions I have seen, or anything I heard during submissions, causes me to have any doubts that, throughout, both sets of officials have conducted themselves responsibly and in accordance with their professional duties. Nevertheless, the two sets of officials, approaching matters from different standpoints, have not always agreed on the detail of the road works involved. For example, the Petitioners' officials have contended that certain accesses onto the new B7076 Road, running between Beattock and Harthrope and lying to the west of the motorway, should be by means of junctions constructed to a higher standard than that acceptable to the Scottish Office and the Respondents. Whilst consultation between the two sets of officials has continued throughout, in areas in which agreement has not been reached, the views of the officials of the Scottish Office and the Respondents have prevailed. The Scottish Office and the Respondents have had the right to instruct Autolink as to the details of design. Because the Petitioners are not a party to the contract, they have not enjoyed any such right.
[10] Following service of the Notices dated 28 October 1999, the Petitioners remained concerned about the standard of the side roads it is intended they should take over, about the standard of lengths of the original A74 roadway, which are to be de-trunked and are to become their responsibility, and about the large areas of the original A 74 roadway and other roads, which have become redundant and are to be "stopped up". Since 28 October 1999, those concerns have been raised at meetings between the two sets of officials and in correspondence that has passed between those officials. Some of those concerns relate to snags, for which Autolink remain responsible up until 25 October 2000. A snagging list, which has been drawn up by officials of the Respondents and the Petitioners, currently contains details of some 1500 snags. However, other of the Petitioners' concerns relate to matters which both sets of officials recognise are not Autolink's responsibility. I was informed that there are approximately 40 such matters.
[11] By letter dated 10 February 2000, the Petitioners' Head of Legal Services informed the Respondents that the Petitioners reserved their position in relation to accepting the various side roads and associated infrastructure, referred to in the two Notices dated 28 October 1999. Following upon the sending of that letter, further meetings took place. Those meetings sought to address the Petitioners' concerns, including their concern that as a consequence of what was provided for in the Notices, they should not have imposed upon them any additional financial burden, beyond the normal responsibilities of a local roads authority.
[12] By letter dated 21 March 2000, the Petitioners' Head of Legal Services wrote again to the Respondents. In his letter he proposed the conclusion of a formal agreement, between the Petitioners and the Scottish Ministers, in terms of draft Heads of Agreement, which he enclosed. He suggested that such an agreement be concluded, before 1 April 2000, the date specified for the transfers in the Notices of 28 October 1999. The letter indicated a deadline of noon on 24 March 2000.
[13] The letter of 21 March 2000 was replied to by a letter dated 24 March 2000, sent to the Petitioners by the Office of the Solicitor to the Scottish Executive. That letter made clear that the proposal of a formal agreement was unacceptable to the Respondents. The letter suggested that it would not be appropriate for the Scottish Executive to enter into any agreement with the Petitioners, as a local roads authority, which purported to amend in any way the statutory provisions covering the roads which the Scottish Executive was transferring to the Petitioners. The letter recognised that whilst Autolink would be responsible for carrying out remedial works, during the Defects Correction Period, in terms of their contract with the Respondents, it was possible that some defects would not be corrected by that company.
[14] Following receipt of that letter, the present Petition was raised by the Petitioners on 28 March 2000.
Remedies sought in Petition
[15] The Petition seeks reduction of the two Notices dated 28 October 2000. Reduction is sought on the grounds that the decisions, constituted by and contained within the Notices, are decisions that no reasonable Executive would have reached, having taken into account all the relevant circumstances and having excluded from consideration all irrelevant circumstances. In the Petition it is also contended that the Petitioners have a legitimate expectation, that the Respondents will not act upon the Notices. As drafted, the Petition also sought interdict and interim interdict against the Respondents from transferring the roads specified in the Notices to the Petitioners on 1 April 200. During the First Hearing before me, Senior Counsel for the Petitioners intimated that interdict was no longer being sought.
Issues raised during First Hearing
[16] At the First Hearing on 28 June 2000, Counsel for the Respondents informed me that he wished to advance arguments in support of his First and Second Pleas in Law. Those pleas seek dismissal of the Petition (1) on the ground that the Petition is incompetent and (2) on the ground that the Petitioners have acquiesced et seperatim delayed in challenging the decisions complained of in the Petition. Senior counsel for the Petitioners was content that the discussion at the First Hearing should be limited to those preliminary issues.
[17] Counsel for the Respondents outlined his submissions in the following terms:
(1) In the circumstances of this case, the Petitioners have delayed in challenging the Notices by 5 months and are thereby barred from obtaining the remedies they seek by Judicial Review.
(2) In the circumstances of this case, the true measure of what is challenged is not the procedural or mechanical Notices dated 28 October 1999, but the Orders made in 1994 and 1998.
(3) If submission (2) is correct, Judicial Review is excluded:-
(a) because there are (or at least were ) alternative remedies available to the Petitioners :-
(i) objections could have been taken to the Orders before they were made,
(ii) no objection was taken, prior to the Orders being made, and thereafter, the validity of the Orders could be questioned only within a 6 week period, and
(iii) if any issue of liability for maintenance is live in the case, (and the Respondents submit it is not), that issue falls to be dealt with by arbitration under the statutory scheme provided for in the 1984 Act; and
- because of the existence of the ouster clause to be found in Schedule 2 to the 1984 Act, linked with the fact that the Petition raises no issue that any of the Orders are ultra vires.
The statutory scheme laid down in the 1984 Act
[18] Before the submissions made on behalf of the Respondents can be considered, it is necessary to outline the statutory scheme in terms of which new motorways and side roads are constructed and existing trunk roads are de-trunked. That scheme is to be found within the provisions of the 1984 Act .
[19] Section 5(2) of the 1984 Act gave the Secretary of State (and now the Scottish Ministers) power to make Orders directing that a road should become, or as the case may be cease to be, a trunk road from such date as may be specified in that regard in the Order. By virtue of Section 5(6), when such an Order directs that a trunk road is to be de-trunked, it may also direct that as from the date specified in the Order, the local roads authority for the area shall be the roads authority for the road in question. Section 9(1)(c) of the 1984 Act gave the Secretary of State (and now the Scottish Ministers) power to make Orders inter alia for the construction of special roads (within the meaning of Section 115 of the 1984 Act), the stopping-up, diversion and improvement of roads crossing or entering the route of a special road, the construction of new roads necessitated by such stopping-up, diversion or improvement and for the transfer of special roads to a local roads authority. Parts I and III of Schedule 1 to the 1984 Act set out the procedure to be followed in the making of Orders under Sections 5(2) and 9(1)(c) and Schedule 2 has effect in connection with the validity and date of operation of any such Order. Read shortly, Schedule 1 lays down a procedure, which would permit a local roads authority, such as the Petitioners, to object to a draft Order and require a local inquiry to be held, before a Section 5(2) Order or a Section 9(1)(c) Order can be made. Schedule 2, on the other hand, sets out a procedure for challenging the validity of an Order, after the Order has been made. Schedule 2 permits any person aggrieved by an Order, who desires to question the validity of the Order or of any provision contained therein, on the grounds that it is not within the powers of the 1984 Act or that any requirement of the Act has not been followed, to make an application to the Court of Session. Any such challenge must be made within 6 weeks of a Notice appearing in the Edinburgh Gazette that the Order in question has been made.
[20] Of the Orders relevant to the present dispute one of them, The Glasgow-Carlisle Trunk Road (A74) (Middlegill-Beattock De-Trunking) Order 1994, was made in exercise of the powers contained in Section 5(2) of the 1984 Act. All the other Orders were make by the Secretary of State by virtue of the order-making power to be found in Section 9(1)(c) of the 1984 Act.
[21] Article 2 of the Glasgow-Carlisle Trunk Road (A74) (Middlegill-Beattock De-Trunking) Order 1994 is in the following terms:-
"2 On 1 April next after the date on which notice is given to Dumfries and Galloway Regional Council by the Secretary of State, the length of road described in the Schedule to this Order shall cease to be a trunk road and Dumfries and Galloway Regional Council shall become the Roads Authority".
[22] All the other Orders, referred to in the Notices of 28 October 1999, which purport to provide for the transfer of new side roads to the Petitioners' statutory predecessors, contain Articles in similar terms. For example, Article 3 of the Glasgow-Carlisle Special Road A74(M) Harthrope-Middlegill (Side Roads) Order 1994 is in the following terms:-
"3 On 1 April next after the date on which notice is given by the Secretary State to Dumfries and Galloway Regional Council that the new side roads are open for the purpose of through traffic the new side roads shall be transferred to the said Regional Council as roads authority therefor."
For the sake of completeness I should mention that one of the Orders, The Glasgow-Carlisle Special Road A74(M) Harthrope-Middlegill (Side Roads) Order (No. 2) 1994, relates only to temporary roads. It contains no such Article. Despite a reference to that Order in one of the Notices of 28 October 1999, the Order has no practical relevance to the dispute between the parties.
[23] During the debate before me both parties were agreed that Articles in such terms, as I have quoted in the two previous paragraphs, constitute a valid exercise of the order-making powers to be found in Sections 5(2) and 9(1)(c) of the 1984 Act. No suggestion was make that an Order required to prescribe the precise date on which a trunk road was to be de-trunked or on which a side road, yet to be constructed, was to be transferred to the relevant local roads authority.
[24] When dealing with the statutory framework, it is necessary to note the provisions of Section 9(5) of the 1984 Act:
"(5) An order under this section may provide for the payment of contributions-
- by the special road authority to any other roads authority in respect of any additional liabilities imposed on that other authority in consequence of the provisions of the order or of any previous order made under this section;
- to the special road authority by any other authority in respect of any liabilities so imposed on the special road authority, being liabilities which would otherwise have fallen to be discharged by the other authority;
and may also provide for the determination by arbitration of disputes as to the payment of such contributions.
[25] During his submissions, counsel for the Respondents also drew attention to the provisions of Section 113(2) and 112 (7) of the 1984 Act. The latter provision (when read with Section 112(8)) provides for arbitration, in the event of any dispute between the Scottish Ministers, on the one hand, and any authority or person, on the other, as to the property or liabilities transferred by Section 112, which includes the situation where a trunk road ceases to be a trunk road. Section 113(2) permits the provisions of Section 112 to be applied in an Order made under Section 9 on the 1984 Act. There is no suggestion that any of the Orders relating to the present dispute, which were made under Section 9(1)(c) of the 1984 Act, applied the provisions of Section 112 to the subject matter of the Order. Moreover, even in relation to The Glasgow-Carlisle Trunk Road (A74) (Middlegill-Beattock De-Trunking) Order 1994, the dispute between the parties is not one as to the property or liabilities transferred by Section 112. The dispute relates to the determination of the date on which the road in question is to be de-trunked and on which the Petitioners are to become the local roads authority therefore. In my opinion, accordingly, the provisions of Section 112(7) and 113(2) are of no relevance to the present dispute between the parties. Such dispute as exists between the parties is not covered by the arbitration provisions to be found in Section 112(7) of the 1984 Act.
[26] In the present case, objection was not taken by the Petitioners' statutory predecessors to the making of any of the Orders in question, nor was the validity of any of the Orders challenged in the Court of Session, within the relevant 6-week period.
What are the decisions being challenged?
[27] Having set out the factual background to the dispute and taken the Court through the statutory provisions to be found in the 1984 Act, counsel for the Respondents then turned to an analysis of certain of the provisions in the Orders referred to in the Petition. Most of these Orders had been lodged as productions by the Petitioners. In particular, I was referred to the Articles I have quoted in Paragraphs 21 and 22 above. Counsel described those Articles as setting out the mechanism for effecting the transfer provided for in the Order in question. He submitted that the Petitioners had accepted such mechanisms. He submitted that the mechanism was triggered when a given state of facts occurred, namely the opening of roads specified in the Order to through traffic, and notification of that event took place. He submitted that the issuing of a Notice, of the nature provided for in such Articles, did not constitute the taking of any decision on the part of the Respondents. He accepted that all the Articles envisaged such a Notice being given and that the issuing of a Notice was required, before a transfer came into effect. He argued, however, that the issuing of the Notice by the Respondents was no more than a "mechanical device". He submitted that such decisions as were taken, in relation to the roads that were to become the responsibility of the Petitioners as from 1 April 2000, had been taken when the various Orders were made. It followed, therefore, that the sending of the two Notices, dated 28 October 1999, did not constitute the taking of any decisions that were now susceptible to Judicial Review.
[28] Senior counsel for the Petitioners disputed this analysis. He contended that the Articles in the Orders, examples of which I have quoted in Paragraphs 21 and 22, each required that conscious decisions be taken by the Secretary of State, and now by the Respondents, as to when the length of road to be de-trunked, should cease to be a trunk road or as to when the new side-roads should be transferred to the Petitioners. He challenged the submissions made by counsel for the Respondents that such de-trunking or transfers of side roads were inevitable occurrences, not least of all because none of the Articles in question required a Notice to be sent nor an "end date", by which the proposed transfer must take place. Senior counsel submitted that, whatever the terms of the contract between the Scottish Office and Autolink and whatever that contract may state as to when the new motorway and side-roads were to be opened for the use of traffic, the Respondents had a discretion as to whether, and if so when, they wished to de-trunk a length of road and as to whether, and if so when, they wished to transfer the new side roads to the Petitioners.
[29] It is convenient that I deal with this issue, as to whether the Notices of 28 October 1999 constitute decisions that are susceptible to Judicial Review, before I turn to the other submissions I heard in relation to the First and Second Pleas in Law on behalf of the Respondents. On this issue I prefer the submissions advanced on behalf of the Petitioners. In my opinion, the issuing of the Notices of 28 October 1999 did involve the taking of conscious decisions on the part of, or at least in the name of, the Respondents. I consider that is clear from the terms in which the two Notices are framed. In both Notices the signatory of the document states "I am directed by the Scottish Ministers to serve notice on your Council". I agree with senior counsel for the Petitioners that it was within the discretion of the Respondents whether, and if so when, to issue the Notices envisaged in the Orders. I recognise, of course, that the period of time that elapsed from the opening of the roads to through traffic, in April and May 1999, until the issue of the Notices on 28 October 1999, in the event did not have any bearing on the transfer date in the Notices of 28 October 1999 being 1 April 2000. That would have been the date of transfer, no matter when any Notices had been issued during the period between May 1999 and 28 October 1999. Nevertheless, none of the transfers took place merely because the new side roads had been opened to through traffic by May 1999. Notice of those events had to be given by the Respondents to the Petitioners, before such transfers could occur. Likewise the de-trunking of the length of the old A74 road did not occur merely because a particular section of the new M74 motorway was opened to through traffic. Here again, a Notice required to be given. I can envisage circumstances in which the giving of a Notice, of the nature of the Notices of 28 October 1999, could be successfully challenged. Whether substantive grounds exist for challenging the issue of the Notices involved in the present dispute and whether there is any validity in the specific grounds of challenge set out in the Petition are questions on which I proffer no opinion. In my opinion, however, there is no reason in principle why decisions to issue Notices, of the nature of the Notices of 28 October 1999, and, by means thereof, to transfer to a local roads authority responsibility for the management and maintenance of de-trunked roads and new side roads, should not be susceptible to Judicial Review.
Mora and acquiescence
[30] Taking the submissions on behalf of the Respondents in the order in which they were argued, the next issues dealt with were those of mora and acquiescence. Counsel for the Respondents submitted that all the roads covered by Orders, referred to in the Notices, were part of a scheme for constructing the M74 motorway that had taken many years to plan and bring to the position that had been reached. There had no opposition to the draft Orders by the Petitioners' statutory predecessors. The validity of the Orders had never been challenged in the Court of Session. The motorway had been built. The side roads had been constructed. The roads had been opened to through traffic. Notices to that effect, for the purposes of Section 17(2) and (3) of the Road Traffic Regulation Act 1984, had been inserted in the Edinburgh Gazette in April and May 1999. Until the lodging of the present Petition, no challenge had been raised as to the competency of the manner in which the Scottish Office and the Respondents had been proceeding. Such silence on the part of the Petitioners had to be considered along with the prejudice the Respondents would suffer, were the Notices to be set aside and the roads in question, some 22 Km of carriageway, not transferred to the Petitioners with effect from 1 April 2000. I was informed that the Respondents had not made any provision in their overall budget for maintaining those roads, during the financial year beginning 1 April 2000. I was also informed that the Respondents sub-contract the repair and maintenance of roads for which they have a responsibility. In view of the issue of the Notices dated 28 October 1999, no arrangements had been made to sub-contract the carrying out of any maintenance that might be required. It was submitted that having regard to all these circumstances, to allow the Petitioners to seek Judicial Review of the issue of the Notices, after a delay of 5 months, would be prejudicial to good administration - particularly when objections, of a similar nature to those now raised, could have been raised at various stages in the past. In these circumstances, whether the matter was approached as one of delay and acquiescence or delay and prejudice (actual and potential), the Petition should be dismissed.
[31] In support of his submissions, counsel for the Respondents relied on a number of authorities. He cited from pages 187-189 in the Opinion of the Lord President in King v East Ayrshire Council 1998 SC 182, page 536 in the Opinion of Lord Nimmo Smith in Singh v Secretary of State for Scotland 2000 SLT 533 and from Paragraphs (13)-(17) of the Opinion of Lord Bonomy in the Petition of Penelope Uprichard and Others v The Fife Council and Another, Unreported (31 March 2000). The case of Swan v Secretary of State for Scotland 1998 SC 479, referred to in the Opinion of Lord Nimmo Smith in Singh, was also of relevance.
[32] In responding to these submissions, senior counsel for the Petitioners referred to the terms of correspondence that has passed between officials of the Petitioners and officials of the Respondents, since the Notices of 28 October 1999 were issued. Most of this correspondence had been lodged by the Petitioners. Rather surprisingly, the Petitioners had not lodged the letter dated 21 March 200, which their Head of Legal Services had sent to the Scottish Executive. It was left to the Respondents to do so.
[33] Senior counsel for the Petitioners stressed that the first letter sent on behalf of the Petitioners, namely the letter of 10 February 2000, explicitly stated that he Petitioners "wishes to advise the Scottish Minister that it reserves its position in relation to accepting the various side roads and associated structures". Moreover, that letter referred to meetings that had taken place, between the two sets of officials. According to senior counsel, those meetings had occurred after the Notices of 28 October 1999 had been issued. Reference was also made to letters dated 7 March 2000 and 9 March 2000, which had been sent to the Respondents and letters dated 3 March 2000, (which mentioned a meeting, which had taken place at Victoria Quay on 15 February 2000), 7 March 2000, 9 March 2000 and 10 March 2000, sent by the Respondents to the Petitioners. Senior counsel contended that the correspondence disclosed that there had been ongoing discussions in relation to the matters in dispute. He submitted that the correspondence was indicative of comfort being given to the Petitioners, that the transfer of the roads to the Petitioners would not impose any unreasonable burdens upon them. Indeed, he suggested that at one stage, at least, the Scottish Executive had arguably led the Petitioners to believe that their concerns were going to be taken care of. He submitted that up until receipt of the letter of 24 March 2000, sent from the Office of the Solicitor to the Scottish Executive, the Petitioners had been proceeding on the perfectly reasonable basis that their concerns were being addressed. In a manner frequently adopted by officials of central and local government, the two sets of officials were engaging in correspondence and meetings, in an effort to resolve their differences. The terms of the letter of 24 March constituted a complete volte face in the position of the Respondents. For the first time, far from being reassured that no abnormal burden would be placed on them, the Petitioners were being informed that unless their concerns were going to be dealt with by Autolink, they would not be met. Senior counsel stressed that the Petition had been raised promptly, following the receipt of that letter.
[34] On the question of prejudice, senior counsel for the Petitioners stressed that the issue of prejudice required to addressed as at 28 March 2000. He submitted that the bald assertions as to prejudice advanced on behalf of the Respondents were not sufficient to bar the judicial review initiated by the Petition lodged at that date.
[35] As Lord Bonomy stressed in Paragraph (16) of his Opinion in Uprichard, there is no Scottish authority in which a Petition for Judicial Review has been refused on the ground of delay alone, in the absence of acquiescence or prejudice. He went onto to state:
"Indeed, while the Court in opinions delivered by the Lord President in King v East Ayrshire Council and Swan v Secretary of State for Scotland 1998 S.C. 479 has recognised that judicial review proceedings ought normally to be raised promptly, the Court also made it clear in these cases that the decision whether or not to allow the petition to proceed on account of delay should be made in the light of the circumstances in which time was allowed to pass. That one of the circumstances to be taken into account is the public interest in good administration is plain from the opinion in King at page 196C-D as follows:
"It is recognised that the public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of the decision for any longer than is absolutely necessary in fairness to the person affected by it (O'Reilly v Mackman [1983] 2 AC 237 at 2808 to 2818 per Lord Diplock)."
In the light of these authorities I have decided to consider the delay in the context of all the surrounding circumstances to determine whether the petitioners should be barred from taking these proceedings. The circumstances which I consider relevant to determination of this issue include actual and potential adverse effects upon good administration, factors including acquiescence and the actual and potential prejudice to the second respondents."
[36] Applying a similar approach to an assessment of the actings of the Petitioners during the period between 28 October 1999 and 28 March 2000, in light of all the surrounding circumstances, including the contents of the correspondence that took place between 10 February 200 and 24 March 2000, I am quite satisfied that it would not be appropriate for me to hold that the Petitioners have acquiesced in the decisions of the Respondents to transfer the de-trunked road and the side roads, with effect from 1 April 2000. On the contrary, the correspondence lodged as productions makes it clear that the Petitioners wished to reserve their position in relation to accepting the transfer of the roads and were only prepared to do so if the negotiations, currently underway, resolved in an acceptable manner the Petitioners' financial and other concerns.
[37] Nor am I persuaded that, on account of the time, which passed, between 28 October 1999 (when the Notices were issued) to 28 March 2000 (when the Petition was lodged), the Respondents sustained actual or potential prejudice that would warrant the present proceedings being held to be barred. We are concerned here with 22 Km of single carriageway. During the period between 28 October 1999 and 28 March 2000, no additional expenditure was incurred by the Respondents on those 22 Km of roads. In the context of the overall budget of the Respondents, the potential maintenance costs of 22 Km of roads after 1 April 2000, pending the final resolution of this dispute, must be limited. Furthermore, the potential net cost to the Respondents (in the event that the Petition is successful and the 22 Km of road remain the responsibility of Respondents for longer than they had envisaged, when the Notices of 28 October 1999 were issued,) would be reduced by the saving on the additional grant allocation, which would otherwise have been payable to the Petitioners. In such circumstances, I do not consider that the Respondents have suffered any prejudice by reason of the fact that they had not, by 28 March 2000, budgeted for such limited expenditure that they may incur following upon 1 April 2000, whereas they would have so budgeted, had the Petition been raised sooner. Furthermore, if the Respondents are accustomed to sub-contracting maintenance works, as I was informed is their practice, then the need to make such arrangements, somewhat later than they might otherwise have done, would be little more than an inconvenience for them. On the information made available to me, I do not consider that such inconvenience can properly be described as actual or potential prejudice.
[38] In the whole circumstances, therefore, I am not satisfied that the Petition is barred by mora and acquiescence. I accordingly repel the Second Plea in Law on behalf of the Respondents.
Competency of Petition
[39] Finally, I turn to the Respondents' challenge to the competency of the proceedings. That challenge proceeds on the premise that the decisions under challenge in the proceeding are not the "procedural or mechanical" Notices dated 28 October 1999, but the making of the various Orders referred to in those Notices. As I have already made clear, I do not accept such a legal analysis of the issuing of the two Notices. Nevertheless I should also deal with the other arguments I heard relating to the Respondents' First Plea in Law.
[40] The challenge to the competency was two pronged. It was argued that the Petitioners have failed to exhaust alternative statutory remedies that were available to them. The Respondents accept that the style of Article in the Orders, as to the determination of the actual date of transfer, is a legally competent one. They argue, however, that as various statutory procedures were available to the Petitioners' statutory predecessors, back in 1992 and 1994, and were not pursued, the present proceedings are excluded on account of the failure on the part of the Petitioners' predecessors to exhaust their statutory remedies. As these statutory remedies, which are to be found within the provisions of Schedules 1 and 2 to the 1984 Act, are only available (a) at the stage when Orders are in draft form (Schedule 1) and (b) within 6 weeks of Notice having been given that an Order has been made (Schedule 2), they clearly can have no relevance to the facts of the present dispute. If both parties accept, as they do, the competency of the style of Article included in the Orders, for the determination of the date of transfer, I cannot see how the service of a Notice many years later, on a timing within the discretion of the Respondents, could have been susceptible to review in accordance with those statutory procedures.
[41] The second prong of the challenge to the competency of the Petition founds on the provisions of Paragraph 4 of Schedule 2, which are as follows:-
"Subject to paragraph 3 above, a scheme or order to which this Schedule applies shall not, whether before or after it as been made or confirmed, be questioned in any legal proceedings whatsoever, and shall become operative on the date on which the notice required by paragraph 1 above is first published or on such later date, if any, as may be specified in the scheme or order."
Counsel for the Respondents categorised paragraph 4 as an ouster clause, which excluded the Court's jurisdiction to entertain the Petition. I reject that submission. In my opinion, these proceedings do not have as one of their purposes the questioning
of the validity of any of the Orders referred to in the two Notices dated 28 October 1999 nor indeed the validity of any other Order made under the 1984 Act. For these reasons I also repel the First Plea in Law for the Scottish Ministers.
Further procedure
[42] In light of the views I have reached, the case will be put out By Order, for a discussion as to further procedure on Tuesday 15 August 2000 at 10.00am.