Scottish Court of Session Decisions

Cannell, Re [2002] ScotCS 62 (8th March, 2002)

OUTER HOUSE, COURT OF SESSION
P725/01	OPINION OF LORD MORISON in the petition JAMES CANNELL Petitioner; for JUDICIAL REVIEW OF A DECISION OF THE SCOTTISH MINISTERS Respondents:   ________________

Petitioner: Bovey, Q.C., Blair; Balfour & Manson, W.S.

Respondents: Cullen, Q.C., Brown; Scottish Executive

8 March 2002

1. The petitioner owns and occupies, along with his family, a dwelling-house at 178 Nithsdale Road, Glasgow. The house is a Category B listed building within the West Pollockshields Outstanding Conservation Area which was extended in about 1900. Eight stained glass panels were commissioned and erected for use in the extension and these are referred to in the description of the listing of the subjects made in terms of section 1 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. In about October 1998 the petitioner removed the panels from the house with a view to selling them. On 3 September 1998 Glasgow City Council, as the enforcement authority for the purposes of the said Act, served an enforcement notice on the petitioner in terms of section 34 thereof requiring him to restore the panels to their original position within the subjects. On 9 September 1998 the Council obtained interim interdict preventing the petitioner from selling or otherwise disposing of the panels. On 8 October 1998 the petitioner lodged an appeal against the notice with the respondents' predecessor, the Secretary of State for Scotland, submitting that the panels were not heritable fixtures to be included in the statutory listing, but that if they were, consent should be granted for their removal in terms of sections 6 and 7 of the said Act. On 6 January 1999 the Secretary of State issued a direction in terms of paragraph 3(1) of Schedule 3 to the said Act that he would determine the appeal instead of a person appointed by him. On 19 April 1999 the Secretary of State intimated that the appeal would proceed by way of a public local inquiry.
2. A public local inquiry was held on 21 September 1999 and 1 and 2 November 1999 before a reporter appointed by the Secretary of State. Following that inquiry the reporter recommended that the notice be upheld, and on 5 June 2000 the respondents issued a decision to that effect. The petitioner appealed against this decision to the Court of Session, in terms of section 58 of the said Act. By letter dated 21 December 2000 the respondents conceded the appeal, having by then taken the view that the reporter had failed correctly to address the tests necessary to determine whether the panels were heritable fixtures. The petitioner was awarded the expenses of the appeal to the Court of Session.
3. On 19 April 2001 the petitioner was correctly informed that his appeal against the notice fell to be re-determined. On 14 June 2001 the petitioner informed the respondents' Inquiry Reporters Unit that he would not participate in the re-hearing procedure unless the respondents gave an undertaking that they would meet the expenses incurred by the petitioner in relation to the previous procedure which had taken place before the reporter who had been appointed to hold the said public inquiry. By letter dated 20 June 2001, the respondents rejected this proposal upon the grounds that "in the circumstances there is no basis for seeking such an award... nor is there any statutory power which would enable (them) to do so". The petitioner has applied for judicial review of this determination. He submits firstly that the respondents have erred in law in concluding that they have no statutory power to meet the said expenses; and secondly, that their refusal to consider their liability for these expenses constituted a breach of certain Articles of the European Convention on Human Rights. A third ground, to the effect that the respondents acted illegally in failing to afford the petitioner a hearing on the merits of his claim for expenses before proceeding with the further procedure was stated to me in the petitioner's submissions, but does not appear to be raised as a separate issue in the petition. The need for a hearing would only arise if the petitioner were to be successful in establishing the disputed right to claim the expenses which he seeks and I consider it unnecessary to deal with this contention as a separate issue.
4. The fundamental complaint which the petitioner has is that unless the respondents meet the expenses which he incurred in relation to the abortive public inquiry, he will be unfairly burdened by the additional expense required for determination of his appeal against the enforcement notice. That additional expense, which he describes as "a second set of expenses", is stated to constitute an excessive and unfair burden on him in pursuit of his appeal, and the responsibility for alleviating that burden rests with the respondents. They should therefore pay the expenses relating to the abortive procedure. The petitioner alleges that this expense is not recoverable from Glasgow City Council or any other person because the respondents' policy is that no award of expenses relating to enforcement notice appeals is made to an appellant against a party to an inquiry except in cases where the conduct of that party has been in some way reprehensible, and this is not the situation in the present case. The appellant appears to accept that there is nothing unfair about the fact that whatever be the outcome of his appeal, he will, if the general policy is applied, have to bear the expenses which he would ordinarily have incurred in pursuing it.
5. This complaint appears to me necessarily to involve dissociating the expense attached to the abortive procedure from that which can be said generally to arise from the lodging of the appeal, and it is presumably for this reason that the petitioner refers to his future expenses as being "a second set of expenses". In my view the expense which the petitioner has claimed cannot be dissociated in this way from the general expenses of the appeal for which the petitioner apparently accepts responsibility. In a case in which an award of expenses follows success, additional expense incurred as a result of an erroneous determination of a tribunal is, correctly in my view, regarded as part of the general expenses of the cause for which the unsuccessful party generally becomes liable. I see no reason in principle why the additional expense incurred in the present case should be regarded differently unless the respondents are vicariously liable for the consequences of errors of law made by the reporter who was employed by the Secretary of State for the purpose of enabling him to discharge his function of determining the appeal. I do not understand the petitioner to contend that the respondents have any liability on this basis. If it is not unfair that the petitioner is unable to recover the general expense of the appeal, it cannot be unfair that he is unable to recover what I hold to be a part of that general expense. Further, if the question as to liability for these expenses is to be regarded as part of the determination of that appeal, as the petitioner contends in his submissions, liability for their payment, including any possible liability of parties to the inquiry, can only be properly ascertained in the context of that determination rather than in the present proceedings in which other parties are not engaged. I examine the petitioner's particular submissions in light of these general observations.
6. On behalf of the petitioner it was firstly submitted that on an ordinary construction of section 265(9) and (10) of the Town and Country Planning Act 1997 the respondents are not excluded, as they contend, from paying the expenses which he is claiming. By virtue of a provision in the Listed Buildings Act 1997 referred to above, the said section 265 applies to inquiries held under that Act. The said sub-sections provide as follows:-

"(9) The Minister may make orders as to the expenses incurred -

(a) by the Minister in relation to -

(i) the inquiry, and

(ii) arrangements made for an inquiry which does not take place, and

(b) by the parties to the inquiry,

and as to the parties by whom any of the expenses mentioned in paragraphs (a) and (b) shall be paid.

(10) what may be recovered by the Minister is the entire administrative expense of the inquiry, so that, in particular -

(a) there shall be treated as expenses incurred in relation to the inquiry
such reasonable sum as the Minister may determine in respect of the general staff expenses and overheads of his department, and

(b) there shall be treated as expenses incurred by the Minister holding the inquiry any expenses incurred in relation to the inquiry by any other Minister or Government department and, where appropriate, such reasonable sum as the Minister or department may determine in respect of general staff expenses and overheads."

7. References to "the Minister" now have to be read, where appropriate, as references to the respondents.
8. The petitioner contends that the reference to "parties" occurring at the end of sub-section (9) should be held to include the respondents themselves or the Secretary of State, who could be described as "parties" in the sense that they or he were responsible for determining that the appeal was to proceed and did proceed by the holding of a public inquiry, and for the appointment of a reporter as their delegate in that connection.
9. In my view this submission is ill-founded. The section as a whole distinguishes between the position of the respondents as responsible for determining the appeal, and that of parties who are interested in its outcome and who, if a public inquiry takes place, appear as parties to that inquiry. The respondents, previously the Minister, are responsible for making the administrative arrangements required to allow them to discharge their function to determine the appeal, including the appointment of a reporter if required, but responsibility for these arrangements does not make them parties to the inquiry. In my opinion the respondents are exercising a quasi-judicial function in making these arrangements, and in holding an inquiry. It is true that in deciding the appeal they cannot be regarded as impartial and independent of the Executive, in so far as they are entitled to and do apply government policy, as was pointed out in the Alconbury case (2001) 2 WLR 1389. But so far as the setting up and conduct of a public inquiry is concerned, they and their reporter are bound to act in a judicial manner and impartially as between the persons appearing thereat. In my view the reference to "the parties" clearly refers to the "parties to the inquiry" previously referred to, and excludes the respondents. The provision, founded on by the petitioner, that the respondents may make an order for payment by a party of their own administrative expenses appears to me to have no relevance in this respect: it is natural that payment of these administrative expenses by a party should be provided for like expenses of court procedures for which a party to a litigation may become liable. Equally, it is unnatural that a person whose function it is to resolve a dispute should become liable to one of the parties to that dispute for the expense involved in doing so.
10. The petitioner further submitted that the refusal of the respondents to entertain his claim for expenses constituted a breach of Article 6(1) (the right to a fair trial), of Article 1 of the First Protocol (protection of property) and of Article 8 (right to respect for private and family life) of the Convention. In my opinion this submission must be rejected on grounds which are common to all of these Articles. The general proposition on which the submission proceeded was that determination of the appeal against the enforcement notice constitutes a determination of the petitioner's civil rights protected by these Articles (see for example Bryan v United Kingdom (1995) 21 EHRR 342, para. 31), and that any issue relating to the expenses of the appeal is an integral part of such a determination. (Robins v United Kingdom (1997) 26 EHRR 527). The respondents' refusal to entertain the petitioner's claim for expenses therefore constituted, it was submitted, an infringement of the rights protected by these Articles.
11. I have no difficulty in accepting that a claim for expenses incurred as a result of an appeal against an enforcement notice ordinarily constitutes part of the determination of that appeal: an award of expenses may be required as part of the means of securing justice between the parties to the dispute. Further, and contrary to submissions which I understood to be made on behalf of the respondents, I regard liability for expenses incurred or to be incurred as a result of such an appeal to be relevant to a question whether a person's civil rights have been infringed by the notice: that question may depend at least partly on an assessment of the balance which must be made between the public interest involved in the serving of the notice and the private interest involved in disputing it, and that private interest includes, if only to a minor extent, the avoidance of any liability for the expense incurred and arising from the dispute. Nevertheless I consider that, in the circumstances averred by the petitioner in the present case, no breach of any of the Articles founded on can be inferred from the respondents' refusal to entertain the claim which the petitioner made to them.
12. In the first place, in this case, unlike others, it is impossible to regard the petitioner's claim for expenses as part of the issue to be determined in his appeal against the enforcement notice. It was not presented either to the respondents or to this court in such a context, or as a necessary part of the proceedings taking place in the appeal. No issue as to the validity of the notice arises or can arise in connection with the claim. A claim for expenses arising from the appeal would ordinarily be intimated to the opposing parties for their interest, but the petitioner did not and does not suggest that his opponents have any interest in it: indeed he apparently accepts the respondents' policy that parties to such an appeal will bear their own expenses. Whatever the merits of the claim on other grounds, it does not appear to me to form any part of a determination whether the civil rights protected by the Articles have been adversely affected by service of the notice. It appears to me to have arisen and to be based quite independently of any such determination.
13. Secondly, there is no precedent or justification in principle of which I am aware, either in the United Kingdom or in Europe, for a party making a claim for the expenses of an inquiry against the respondents because they were the persons responsible for arranging the inquiry and for determining the appeal. A claim for expenses against another of the parties to the inquiry is the ordinary and proper remedy available in appropriate circumstances to alleviate the burden of which the petitioner complains, and it is available to the petitioner at present although he avers that it is not. If such a claim were to be made by the petitioner, for example against an unsuccessful party to the appeal, and if that claim were to be refused by the Executive on the grounds of general policy, it might be possible to maintain that the application of that policy to the circumstances of the case was unreasonable. But no such claim has been made, and in my view refusal to entertain a claim made against the respondents rather than against a party to the inquiry cannot be regarded as interfering with the petitioner's civil rights as protected by the Convention.
14. Thirdly, it appears that the European Court regards liability for expenses as being a matter exclusively for domestic law, in the same way as procedural matters are so regarded. This may arguably appear inconsistent with decisions to the effect that determination of liability for expenses is an integral part of determinations on issues affecting human rights, but it appears to be the case. In the case of Masson and Van Zon v Netherlands 1996, 22 EHRR 491 it was held (p. 510) that a person acquitted of a criminal charge had no right under the Convention to reimbursement of his costs, however necessary these costs might have been. It was held that "such a right can be derived neither from Article 6(2) nor from any other provision of the Convention or its Protocols. It follows that the question whether such a right can said in any particular case to exist must be answered solely with reference to domestic law." Although the contrary argument appeared to have been founded partly on the presumption of innocence dealt with in Article 6(2), it appears from the decision as a whole that it applied also to Article 6(1) on which the petitioner founds in the present case, and indeed to all other provisions of the Convention. In my view there can be no distinction of this case from that of the present based on the fact that the dispute as to expenses in Masson related to criminal proceedings, nor, as was suggested on behalf of the petitioner, on the fact that his own complaint relates to expenses which he anticipates he will incur in the future, rather than those incurred in the past. That fact does not affect the principle, and in any event the claim which was refused was one for expenses which the petitioner had already incurred. There is no authority of which I am aware in which the European Court has dealt with liability for expenses under any provisions of the Convention: in Robins v U.K (1997) 26 EHRR 527 the complaint about expenses was that an assessment of liability, determined according to domestic law, was unduly delayed. In Airey v Ireland (1979) 2 EHRR 305 the applicant's complaint was that access to the court had effectively been denied to her by reason of the State's failure to provide an effective system of legal assistance. In neither of these cases was the question of liability for expenses in issue, and in Robins that question appears to have been assumed as one for domestic law. The refusal to consider the petitioner's claim, if that constituted an infringement of the petitioner's rights, has therefore to be dealt with exclusively by reference to section 265(9) of the Town and Country Planning Act 1997 previously referred to, and not by reference to any Article of the Convention.
15. If I am correct in holding that for the above reasons the respondents' refusal to entertain the petitioner's claim cannot constitute an infringement of his rights under the Convention, there is no proper context in which I can consider each of the Articles founded on. In any event there is no material before me which would enable me to do so. The petitioner's claim was not refused as a matter of discretion, nor on the ground that it did not interfere with the petitioner's right to a fair trial, nor on the ground that any interference in his property rights or family life was justified in the public interest. It was refused on the general ground that there was no legal basis for the claim. Questions of proportionality and the "margin of appreciation" accorded in the making of a discretionary decision, on which I was addressed in the petitioner's submissions, do not arise in a review of the respondents' rejection of the claim. If the respondents were wrong in holding that there was no basis for the claim their decision could not stand, and the question whether each of the Articles founded on had been contravened might then become an issue. That question is not an issue at present, and it is not one on which I am able to express any views even on the assumption that I am wrong in holding that the Convention provisions do not apply to the case.
16. The petitioner also submitted that section 265(9) above referred to should be construed so as to allow a claim against the respondents, in light of the provision contained in section 3(1) of the Human Rights Act 1998. That sub-section provides that:

"So far as it is possible to do so, ...... legislation must be read and given effect in a way which is compatible with the Convention rights."

Since, as I have held, the petitioner had no right under the Convention to make his claim against the respondents, the application of this section does not arise. However, I should observe that I do not regard it as "possible" to construe the word "parties" used in section 265(9) as including the respondents or their predecessor the Secretary of State.

17. For these reasons I hold the petitioner's averments to be irrelevant, sustain the respondents' first plea-in-law, and dismiss the petition.