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Cite as: [2003] ScotCS 72

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Macfadyen

Lady Smith

P725/01

OPINION OF THE COURT

delivered by LORD MACFADYEN

RECLAIMING MOTION

in the cause

JAMES DAVID CANNELL,

Petitioner and Reclaimer;

against

THE SCOTTISH MINISTERS,

Respondents:

for

JUDICIAL REVIEW

_______

Act: Bovey, Q.C., et Blair; Balfour & Manson (for the Petitioner and Reclaimer)

Alt: Cullen, Q.C. et Creally; R Henderson (for the Respondents)

14 March 2003

Introduction

The petitioner is the owner of a house at 178 Nithsdale Road, Glasgow. The house is a villa, originally built in the late nineteenth century, with an extension added in about 1900. Eight stained glass panels, each measuring about 80 cm by 47 cm, were installed in the extension. The panels were held in place by beading. In February 1990 the Secretary of State (the statutory predecessor of the respondents), in exercise of powers then vested in him by virtue of section 52 of the Town and Country Planning (Scotland) Act 1972, listed the house in category B as a building of special architectural or historic interest. The entry in the list made specific reference to the panels.

In 1998 the petitioner removed the panels from the house, with a view to their sale. Acting under section 34 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 ("the Listed Buildings Act"), the City of Glasgow Council ("CGC") issued a listed building enforcement notice, dated 3 September 1998, by which they required the petitioner to restore the panels to their original position by 9 October 1998. On 9 September 1998 CGC obtained in the Court of Session interim interdict preventing the petitioner from proceeding with the sale of the panels.

On 8 October 1998 the petitioner exercised his right under section 35 of the Listed Buildings Act to appeal against the listed building enforcement notice. He did so on the grounds, inter alia, (1) that the panels were moveable property, and were therefore unaffected by the listing, which could affect only heritable property and fixtures; and that the removal of the panels therefore did not constitute a contravention of section 8 of the Listed Buildings Act (section 35(1)(c)); and (2) that listed building consent for the removal of the panels, if required, ought to be granted (section 35(1)(e)). The Secretary of State appointed a reporter to consider the appeal, then on 6 January 1999 issued a direction under paragraph 3(1) of Schedule 3 to the Listed Buildings Act that he would himself determine the appeal. On 19 April 1999 the Secretary of State intimated that the appeal would proceed by way of public local inquiry.

The public local inquiry took place before the reporter on 21 September and 1 and 2 November 1999. The petitioner was represented by his solicitor. CGC and Historic Scotland both appeared at the inquiry to oppose the appeal. On 29 March 2000 the reporter recommended that the listed building enforcement notice be upheld. The respondents accepted the reporter's recommendation, and on 5 June 2000 refused the appeal. The petitioner appealed to the Court of Session under section 58 of the Listed Buildings Act. By letter dated 21 December 2000 the respondents conceded that the reporter had failed to address correctly the legal tests for determining whether or not the panels were heritable fixtures. As a result, on 7 March 2001, of consent, the Court quashed the decision of 5 June 2000.

On 19 April 2001 the Inquiry Reporters Unit advised the petitioner that the appeal fell to be re-determined. The petitioner does not dispute that that is correct. The reporter who had heard the public local inquiry had by then retired, and a new reporter had therefore been appointed. Various proposals as to the procedure to be adopted were put forward by the new reporter and by CGC. On 14 June 2001 the petitioner's solicitors wrote to the Inquiry Reporters Unit, and separately to Historic Scotland, advising them that the petitioner did not intend to participate in the rehearing process, including a pre-inquiry meeting proposed for 3 July,

"unless he receives an undertaking from you that you will meet the expenses which he incurred in consequence of the whole procedure before [the original reporter] ...as the same may be agreed or subsequently taxed by the Auditor of the Court of Session."

On 20 June 2001 the Office of the Solicitor to the Scottish Executive replied to the letter of 14 June sent to Historic Scotland. The substance of the reply was that:

"... in the circumstances there is no basis for seeking such an award of expenses nor is there any statutory power which would enable the Scottish Ministers to do so".

On receipt of that letter the petitioner brought this petition for judicial review. The remedies which he seeks include (1) declarator that the decision expressed in the letter of 20 June was erroneous in law; (2) declarator that the decision was incompatible with the petitioner's rights under Articles 6 and 8 of the European Convention on Human Rights ("the Convention") and Article 1 of the First Protocol to the Convention, and unlawful under section 6(1) of the Human Rights Act 1998; and (3) reduction of the decision. After a first hearing, the Lord Ordinary pronounced an interlocutor on 8 March 2002 sustaining the respondents' plea to the relevancy of the petition and dismissing it. Against that interlocutor the petitioner reclaimed.

The issues

The petitioner's challenge to the validity of the respondents' decision is based, in all its aspects, on section 265 of the Town and Country Planning (Scotland) Act 1997. Subsections (4) to (13) of section 265 are applied to inquiries into appeals under section 35 of the Listed Buildings Act by paragraph 6(4) of Schedule 3 to that Act. The petitioner relies, in particular, on subsection (9) of section 265, which is in the following terms:

"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."

The references to "the Minister" must now be read as references to the respondents.

The petitioner contends that on a sound construction of section 265(9) the power of the respondents to make orders as to the parties by whom expenses incurred by the parties to the inquiry shall be paid is wide enough to enable them to order themselves to make payment of expenses incurred by a party to the inquiry. If that is correct, the respondents misdirected themselves in deciding that there was no statutory power enabling them to give the undertaking which the petitioner sought.

Two separate arguments were advanced in support of that result. The first involved the application to section 265(9) of ordinary principles of statutory construction. The second, which was more complex, depended on the application of section 3(1) of the Human Rights Act 1998. That in turn involved consideration of whether a lack of a power on the part of the respondents to bear the expenses of the petitioner as a party to the inquiry would be incompatible with the petitioner's convention rights. In the petition, and before the Lord Ordinary, the petitioner contended that the absence of such a power was incompatible with his rights under Articles 6 and 8 of the Convention and Article 1 of the First Protocol. Before us, however, he restricted his argument to Article 1 of the First Protocol and Article 8 of the Convention. No argument was advanced in relation to Article 6.

Expenses and wasted expenses

Before turning to an analysis of the terms of section 265(9), it is convenient to take note of different categories of circumstances which may all be described as involving an award of expenses. One category, which is commonplace in litigation in this jurisdiction, is that in which the court will pronounce orders requiring one party to proceedings to bear expenses incurred by another party to the proceedings. Such orders are within the court's discretion, but that discretion is exercised in accordance with well-recognised general principles, such as the principle that expenses will usually follow success. Another example within that category is that under section 265(9) the respondents have power to find one party to an inquiry liable to pay the expenses incurred by another party to the inquiry. As a matter of general policy, however, that power is usually only exercised against a party who has acted unreasonably (see Scottish Development Department Circular 6/1999 printed in the Appendix at pages 24 to 29). A second category comprises circumstances in which a party to proceedings may be ordered to pay expenses incurred by the person or body responsible for making the administrative arrangements for the proceedings. In so far as section 265(9) enables the respondents to make an order against parties finding them liable to pay expenses incurred by the respondents in relation to the inquiry, it provides an example of that category. We were informed that it is not the respondents' practice to make orders of that sort, but the power to make them is clear. A third possible category comprises circumstances in which an order may be made compelling a person or body other than a party to proceedings to pay expenses incurred in the course of the proceedings by a party to them. Section 265(9) would make provisions authorising awards of expenses in that category, if it were construed as the petitioner contends it should be.

In the course of the submissions made on the petitioner's behalf, considerable emphasis was placed on the concept of wasted expense. That concept, although it is not a term of art, is not unfamiliar. The fact that expense may be incurred which turns out to be wasted for one reason or another is a factor which may be taken into account in making a discretionary order that one party to proceedings should bear the expenses incurred by another (e.g. Dick & Stevenson v Mackay (1880) 7 R 778 at 791, where from an award of expenses in favour of the successful party there were excluded wasted expenses incurred in consequence of incompetent procedure). In the present case, in the letter of 14 June 2001 and before the Lord Ordinary, the petitioner's position appears to have been that the whole expenses which he had incurred in the inquiry before the original reporter fell to be regarded as wasted expenses, and that any future expenses incurred in proceeding further with the appeal would be "a second set of expenses". Before us, however, it was recognised that that was not so. How far the expenses of the inquiry before the original reporter will turn out to have been wasted will depend on the procedure adopted in the proceedings before the new reporter. In the course of the hearing on the summar roll, senior counsel for the petitioner sought and obtained leave to amend the terms in which declarator is sought in heads (1) and (2) of statement 3 of the petition, in order to reflect that change of position. The reclaiming motion proceeded on the basis that, if the appeal went further before the new reporter, there would be wasted expense, but the amount that would be wasted could not be identified at this stage. It might be minimal.

The ordinary construction of section 265(9)

The petitioner submitted that, if section 265(9) was construed in accordance with ordinary principles of statutory construction, leaving aside for this purpose the effect of section 3(1) of the Human Rights Act, it conferred on the respondents a power to hold themselves liable to pay expenses incurred by the petitioner in the proceedings before the original reporter. The error into which it was said that the respondents and the Lord Ordinary had fallen was to read the word "parties", where it last appears in the subsection, as if it were synonymous with the phrase "parties to the inquiry" which appears in paragraph (b). It was submitted that "parties" was capable of being read as synonymous with "persons" (Bremner v Bremner 1998 SLT 844, per Lord Caplan at 846). If "parties" where it last appears in section 265(9) were read in that way, it would be wide enough to include the respondents.

Alternatively, the petitioner submitted, if the use of the word "parties" meant "parties to the inquiry", what it required was that there be a relationship between the person against whom an order could be made and the proceedings in which the expenses were incurred. There was in the circumstances of this case a sufficient proximity for that purpose between the respondents and the inquiry because of four considerations. These were (i) that the appeal had been called in for determination by the respondents' predecessor, (ii) that the respondents' predecessor had decided that the appeal should proceed by way of public local inquiry, (iii) that Historic Scotland, an executive agency of the respondents, were a party to the appeal, and (iv) that the reporter was a delegate of the respondents. On that basis, even if an order for payment of expenses could only be made against a party to the inquiry, the respondents could be regarded as a party to the inquiry.

For the respondents it was submitted that the Lord Ordinary in paragraph 9 of his opinion had correctly construed section 265(9). The word "parties" where it last appeared in the subsection was a reference back to the phrase "parties to the inquiry". Although "parties" could be used as a synonym for "persons", it was not so used in section 265(9). The word "persons" was actually used to convey that broader meaning in earlier subsections of section 265. In any event, the "parties" against whom the respondents could make an order requiring them to pay expenses could not readily be construed as include the respondents themselves. If it had been intended that the respondents might bear expenses incurred by a party to the inquiry, that would have been expressed in a provision directly empowering them to reimburse such expenses, rather than by invoking the convoluted concept of the respondents making an order against themselves. Moreover, if the word "parties" where it last appeared included the respondents, for the purpose of an order in respect of expenses incurred by a party to the action, the result was that the single use of the word "parties" required to be read in two separate senses for the purposes of paragraphs (a) and (b) respectively, because there could be no question of the respondents making an order against themselves to pay the paragraph (a) expenses which they had already themselves incurred. There was no sensible way of treating the petitioners as parties to the inquiry in the sense argued for in the petitioner's alternative submission. The meaning of "parties to the inquiry" was clearly confined to denoting those adopting a position supporting or opposing the appeal, and could not include the decision-maker. Historic Scotland were parties to the inquiry in the proper sense, but the rationale for the petitioner's claim was not that the respondents should bear his wasted expenses because they represented Historic Scotland, but rather that they should do so because the extra burden on the petitioner of wasted expenses had arisen as a result of the failure of their delegate, the reporter, to apply the correct legal test to the question of whether the panels were fixtures. If the respondents were to be regarded as "parties to the appeal" by virtue of being connected to it in the ways mentioned by the petitioner, there would be no need for the separate provision contained in paragraph (a); paragraph (b) would be sufficient by itself. It was pointed out, too, that there was no authority for the construction for which the petitioner contended, despite the fact that the section and its predecessors had been in force since 1947.

In our opinion it is clear that if section 265(9) is to be construed in accordance with ordinary principles of statutory construction, without regard to the special approach required by section 3(1) of the Human Rights Act, it does not empower the respondents to make an order against themselves to pay either expenses incurred by the petitioner in connection with the appeal generally, or wasted expenses in particular. The section is concerned with two things, namely recovery from the parties to the inquiry of administrative costs incurred by the respondents in setting up the inquiry (paragraph (a)), and the imposition on one party to the inquiry of liability to pay expenses incurred by another party to the inquiry (paragraph (b)). The respondents are empowered to make orders for those purposes only. The section is not concerned with the imposition of liability on the respondents to bear expenses incurred by a party to the inquiry.

That result follows, in our view, from the ordinary meaning of the language used in the subsection. Although the petitioner's argument was concerned principally with the meaning to be ascribed to the word "parties", the first indicator that the construction contended for by the petitioner is erroneous occurs earlier in the subsection. The subsection is concerned with a power conferred on the respondents to make orders as to the parties by whom expenses shall be paid. If the intention had been that the respondents should have power themselves to bear expenses incurred by a party to the inquiry, that power could readily have been directly expressed, without resort to the oddity of giving the respondents power to order themselves to do something. Secondly, we do not consider that the petitioner is right in submitting that in this section "parties", where last used, means "persons". We accept that in other contexts "parties" may be synonymous with "persons". But in section 265 the general word "person" has already been used. We do not say that if the word "persons" had been repeated in subsection (9) that would necessarily have resulted in the construction for which the petitioner contends. But the prior use of "person" provides a context unfavourable to construing "parties" as "persons". In our view, the natural way of reading "parties" at the end of subsection (9) is as a reference back to the phrase "parties to the inquiry" in paragraph (b). If it were not so construed, the effect would be not only to widen the power in the way contended for by the petitioner, namely to allow the respondents to make orders against themselves, but to enable them to make orders against anyone, without the need for any nexus between that person and the inquiry. It seems unlikely that that was intended. The petitioner's construction would also have the awkward effect of requiring a single use of the word "parties" to mean one thing in the context of a paragraph (a) order, where it could not include the respondents (an order by the respondents on themselves to bear expenses which they had already borne being quite otiose), and another thing in the context of a paragraph (b) order, where it could include the respondents. These considerations, when taken together, amount in our opinion to a compelling case for not construing section 265(9) as the petitioner proposes.

We also reject the alternative approach put forward by the petitioner. If "parties" is a reference back to "parties to the inquiry", as we hold it is, it is impossible to construe the phrase "parties to the inquiry" as broad enough to include the respondents. It is not a matter of simply finding a nexus between the respondents and the inquiry proceedings. Plainly such a nexus exists in the ways identified on the petitioner's behalf. The phrase "parties to the inquiry", however, is in our opinion plainly restricted to connoting those involved in the inquiry as proponents of a case or point of view for consideration by the fact-finder (the reporter) and determination by the decision-maker (the respondents). The parties to the inquiry are those who present or have the right to present evidence or submissions designed to influence the conclusion reached by the decision-maker. It would be subversive of the ordinary use of language in the context of quasi-judicial proceedings to treat the phrase "parties to the inquiry" as including the decision-maker.

We are therefore satisfied that, applying ordinary principles of statutory construction, section 265(9) does not empower the respondents to make an order for payment by themselves of expenses incurred by the petitioner in the course of proceedings before the original reporter.

Section 3(1) of the Human Rights Act

It follows that the petition can only succeed if the petitioner is able to invoke the special rule of construction set out in section 3(1) of the Human Rights Act. Section 3(1) is in the following terms:

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

Junior counsel for the petitioner referred us to two recent House of Lords cases (R v A (No. 2) [2002] 1 AC 45, and R v Lambert [2001] 3 WLR 206) for guidance on the proper approach to the application of section 3(1). On the one hand, in R v A, at paragraphs 44 and 45, Lord Steyn emphasised the strength of the interpretative obligation imposed by section 3(1), and indicated that it could result in a statutory provision being read subject to an implied provision. On the other hand, Lord Hope of Craighead, at paragraph 108, (and in R v Lambert at paragraph 79) pointed out that compatibility with Convention rights is to be achieved only so far as is possible. It is, however, unnecessary for us at this stage of the case to consider in the abstract how far it is possible or necessary to go by virtue of section 3(1). Before the petitioner can invoke section 3(1), he must identify the respect or respects in which section 265(9), if it were construed in the way set out above, would be incompatible with his Convention rights. Only then would it be necessary for us to consider whether it was possible, applying section 3(1), to construe section 265(9) in a way which avoided such incompatibility.

Article 1 of the First Protocol

In their submissions, counsel for the petitioner relied first on Article 1 of the First Protocol. That article is in the following terms:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

The petitioner submitted that the system of listing buildings of special architectural or historic interest, the requirement for listed building consent before changes can be wrought to listed buildings, the procedure for enforcement of that requirement by listed building enforcement notice, the use of common law interdict to reinforce that procedure, the criminal sanctions attached to non-compliance with a listed building enforcement notice (Listed Buildings Act, section 39), and the power of the planning authority to enter on the land, take the steps necessary to comply with the notice, and recover the cost of doing so from the owner (section 38), taken together, operated as an interference with the petitioner's peaceful enjoyment of his possessions and thus engaged the first sentence of Article 1. That much the respondents did not dispute. They countered, however, by submitting that that interference was part of a system of control of the use of property in accordance with the general interest, which was a legitimate aim in terms of the second paragraph of the article. The petitioner in turn did not dispute that that was so. However, the petitioner maintained that, to be justified on a ground mentioned in the second paragraph, an interference with peaceful enjoyment of possessions required to be no more than was necessary for the attainment of the purpose mentioned in the second paragraph. The issue therefore came to be one of proportionality. If the system of control imposed on the petitioner an excessive burden, it failed the proportionality test.

In that connection counsel for the petitioner relied upon Immobiliare Saffi v Italy (2000) 30 EHRR 756. That case concerned a statutory provision of Italian law concerning staggering of evictions to avoid the social tension which would result from the simultaneous eviction of a large number of tenants. Because urgent orders were given priority over non-urgent orders, the applicants were unable for a period of six years to enforce an order for possession granted against their tenant. The Court accepted that the legislation had a legitimate aim (paragraph 48), but went on to make the following observations under the heading Proportionality of the interference:

"49. The Court reiterates that an interference, particularly one falling to be considered under the second paragraph of Article 1 of Protocol No. 1, must strike a 'fair balance' between the demands of the general interest and the requirements of the protection of the individual's fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, and therefore also in its second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the state enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question."

In paragraph 54 the Court concluded that the statutory system was not in itself open to criticism, having regard in particular to the permitted margin of appreciation, but went on to observe:

"However, such a system carries with it the risk of imposing on landlords an excessive burden in terms of their ability to dispose of their property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on the landlord's property rights are neither arbitrary nor unforeseeable."

The Court concluded that the system, involving as it did a six year wait on the applicants' part to enforce their eviction order, imposed an excessive burden on them and accordingly upset the balance that must be struck between the protection of the right of property and the requirements of the general interest (paragraph 59).

The respondents did not dispute that the question of proportionality required to be addressed, but maintained that neither the system of controlling alterations to listed buildings, nor its application in the petitioner's case, imposed on the petitioner an excessive burden. In these circumstances it is convenient to leave the subject of Article 1 of the First Protocol at this point, and to turn to Article 8 of the Convention. The question of proportionality can be considered in due course in the light of both articles.

Article 8

Article 8 is in the following terms:

"1. Everyone has the right to respect for his private and family life, his home, and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Junior counsel for the petitioner cited Buckley v United Kingdom (1997) 23 EHRR 101 as an example of the town and country planning system engaging the Article 8(1) right to respect for a person's home, although in that case there was held to be no violation. It was not disputed by the respondents that the petitioner's house was his "home" within the meaning of Article 8(1), but they contended initially that in the circumstances of the present case that article was not engaged. The concept of "home" involved more than the heritable property in which a person lived. Nothing in the impact of the enforcement procedures in the present case impinged on the intangible considerations that went to constitute the petitioner's home. All that was affected was his house as a piece of heritable property. That was covered by Article 1 of the First Protocol. Senior counsel for the petitioner, however, maintained that one of the petitioner's reasons for wishing to remove the panels was a concern for the safety of members of his family (because the panels might attract criminal activity), and submitted that on that basis the listed building controls impinged on his enjoyment of the house as a home. Although that point does not appear expressly in the petitioner's pleadings, senior counsel for the respondents very properly did not seek to take any technical point of that nature. He accepted that in so far as the removal of the panels arose out of concern for the safety of members of the petitioner's family, Article 8 could be engaged.

Article 8 secures "respect" for a person's home. It was not disputed that a system of control of listed buildings did not necessarily involve disrespect for the home, but might do so. It was also accepted by senior counsel for the petitioner that that system could be justified in terms of paragraph 2 of Article 8, although he declined our invitation to identify which of the possible grounds for justification was applicable. In light of that somewhat inspecific concession, it does not appear to us to be necessary to explore the matter further. The result is that if the petitioner is to contend that the absence of a power to hold the respondents liable for his wasted costs amounts to a contravention of his rights under Article 8, it is necessary for him to show that the system (if it involves such an absence of power) is incompatible with his rights under Article 8 by virtue of imposing on him an excessive burden which is disproportionate to the legitimate aim which the system of control of listed buildings seeks to achieve.

Proportionality

It thus seems to us that there is scope for the petitioner to argue that a construction of section 265(9) which results in the respondents having no power to bear his wasted expenses in the events which have happened is incompatible with his Convention rights under both Article 1 of the First Protocol and Article 8 of the Convention. The success of the argument, under either provision, depends on the petitioner being able to show that the system, if it confers no such power on the respondents, imposes on the petitioner an excessive burden, which is disproportionate to any aim which it is legitimate for the state to seek to achieve under either of these articles.

The petitioner submitted that the questions which the court should ask itself, in addressing the question of proportionality, were:

"whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective"

(R v Secretary of State for the Home Department, ex parte Daly [2001] 2 AC 532, per Lord Steyn at paragraph 27, quoting Lord Clyde in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69 at 80). It seemed to us, however, that it was with the third of these considerations that the dispute between the parties in the present case was concerned. It was further submitted that while the courts, in deciding whether there had been a violation of Convention rights, required to accord to the democratic powers of government a discretionary area of judgment,

"greater or lesser deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts"

(International Transport Roth GmbH v Secretary of State for the Home Department [2002] 3 WLR 344, per Laws LJ at paragraph 87; Adams and Others, 31 July 2002, unreported, per Lord Nimmo Smith at paragraph [92]). In the present context, where the issue related to procedure in proceedings of a quasi-judicial nature, and in particular to provisions regulating awards of expenses, it was submitted, the court should be less deferential to the legislature than would be the case, for example, in a matter of social policy.

In the present case the questions which, according to the petitioner's submissions, require to be addressed are whether an excessive burden is imposed on the petitioner either (1) by the fact that the statute makes no provision for payment by the state of expenses incurred by the petitioner in pursuing his appeal against the enforcement notice, where these were wasted expenses for which the reporter was responsible, or (2) by the way in which the statutory scheme has operated in the present case.

Senior counsel for the petitioner submitted that the burden of the system of control of listed buildings on the petitioner should be held to be excessive when regard was had to the following circumstances:

The number and length of the various procedures involved in enforcement of the control of listed buildings. These included:

the listing of the house as a building of special architectural or historic interest;
the service of the listed building enforcement notice;
the interdict against sale of the panels;
the appeal against the enforcement notice;
the initial submission to the reporter on the merits of the appeal;
the call-in of the appeal for decision by the Secretary of State;
the decision that the appeal should be conducted by way of public local inquiry;
the holding of the public local inquiry;
the respondents' decision in light of the reporter's recommendation;
the appeal to the Court of Session under section 58, and the quashing of the respondents' decision;
the re-opening of the inquiry; and
the attitude of CGC to the form which the further inquiry should take.

The cost of these procedures to the petitioner. It was accepted that the interdict stage might have limited cost consequences, since expenses might be awarded against CGC. That was not, however, certain. There would, in any event, be expenses which would not be recoverable on party and party taxation. Reference was made to the sum of £16547.94 mentioned at page 22 of the Appendix, although it was accepted that some of that might be recoverable. There were in addition outlays of £1700.
The sanctions engaged or threatened in connection with those procedures. These included the criminal sanctions under section 39, the civil sanctions under section 38 and the sanctions in respect of breach of interdict.
The lack of fault on the part of the petitioner. He was not at fault in pursuing his contention that the enforcement notice was in the circumstances ill-founded. Nor was it his fault that expense was wasted as a result of the flaw in the original reporter's decision. The relevance of fault on the part of the individual in striking a fair balance between the rights of the individual and the general interest was mentioned in Wilson v First County Trust Ltd [2001] 3 WLR 42, at paragraph [32].
The open-ended commitment which the second inquiry and the subsequent procedures involved for the petitioner. In that connection reference was made to Immobiliare Saffi v Italy at paragraph 54, and it was suggested that the reference there to unforeseeable consequences should be read as covering a situation in which consequences, although they could be foreseen, were open-ended and thus unforeseeable in extent.
The power of the respondents to recover expenses which they incurred. Despite the fact that that power was not used, its existence created an imbalance between the state and the individual if there was no right in the individual to recover expenses wasted through error on the part of an official.
The practical consequences of listing. These were to compel the petitioner, if he did not succeed in his appeal, to restore the panels to their original position in the house. Their value could not be realised. If they were restored, increased insurance costs would be incurred.

Although senior counsel for the petitioner thus sought to stress the aggregate burden imposed on the petitioner by the system of control of listed buildings, it requires, in our view, to be kept in mind that it was only said to be "excessive" in so far as section 265(9) does not make provision for the respondents to bear expenses which the petitioner incurred as a result of the reporter's error. No submission was made that, but for the alleged deficiency in relation to expenses, the system of control of listed buildings imposed an excessive burden disproportionate to it legitimate aims.

The respondents sought to argue that there was authority for the proposition that an entitlement to recover wasted expenses could not be derived from any provision of the Convention. That argument was based on an observation in paragraph 49 of the judgment of the Court in Masson and Van Zon v Netherlands (1996) 22 EHRR 491. In that case the applicants had been prosecuted for forgery and corruption, had spent some time in custody, but had eventually been acquitted. They brought claims for recovery of their legal and other costs in connection with the proceedings. These claims having been for the most part rejected, they complained that their rights under Article had been infringed. In paragraph 49 of its judgment the Court said:

"In view of the status of the Convention within the legal order of the Netherlands, the Court observes firstly that the Convention does not grant to a person 'charged with a criminal offence' but subsequently acquitted a right either to reimbursement of costs incurred in the course of the criminal proceedings against him, however necessary these costs might have been, or compensation for lawful restrictions on his liberty. 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 be said in any particular case to exist must be answered solely by reference to domestic law."

The respondents sought to argue that the point made in the second sentence of that passage could be applied equally to civil proceedings, and therefore constituted an obstacle to the petitioner's claim that the absence of provision for recovery of his wasted expenses from the respondents constituted an infringement of his Convention rights.

The respondents further submitted that there was good reason in principle for not subjecting any quasi-judicial decision-maker to liability in expenses incurred by a party to the dispute which he has to resolve. Such liability might subject the decision maker to pressure which affected his independence, or at least gave the objective appearance of doing so. There was, moreover, a practical difficulty in applying a rule that a decision-maker should be liable for expense that could be regarded as wasted if his decision was wrong. Error on the part of a decision-maker in an adversarial system was not necessarily the decision-maker's fault. Much might depend on the submissions put to him. Here, in particular, the decision-maker (the reporter) was a lay person making a decision on a point of law in light of submissions made by lawyers representing the parties to the inquiry. It was inappropriate to assume, without more information than was presently available, that the reporter's error was the reporter's fault, rather than the result of the submissions made on the parties' behalf.

The respondents submitted that, in any legal system, it was recognised that in pursuit of a legal remedy a party might have to incur expense which would prove to be irrecoverable, even if that party was ultimately found to be in the right. Various examples could be give. In systems such as those of many States in the United States of America, there was ordinarily no provision for recovery of costs by a successful litigant. In Scotland, a party who succeeded in litigation against another who had the benefit of legal aid would frequently not recover expenses. Even a successful party who obtained an award of expenses against his opponent would make only partial recovery, because his account of expenses would be taxed on a party and party basis. In the criminal context, an accused who was acquitted would recover no expenses. The risk that costs might be incurred which proved irrecoverable was therefore an entirely foreseeable situation in a legal system.

In considering the question of proportionality, the respondents submitted, it was necessary to consider the overall nature and effect of the system of control of listed buildings. The proportionality of the system of appeal to the respondents against a listed building enforcement notice, and appeal against the respondents' decision to the Court of Session was not, as such, challenged. The system made provision for the recovery of expenses at the stage of appeal to the respondents. No challenge was made to the policy of awarding expenses at that stage only against a party who acted unreasonably. It was not suggested that that policy could not be departed from if circumstances so required. Expenses in an appeal to the Court were recoverable in the ordinary way, and the petitioner had obtained an award of expenses covering that stage. There was thus a well-established statutory appeal system, the stages of which could be mapped and predicted with reasonable certainty. The system expressly provided for the correction of errors of law committed by the reporter or the respondents by appeal to the Court. The effect on expenses was entirely foreseeable. The system therefore could not be described as arbitrary or unforeseeable.

It was further submitted on the respondents' behalf that the petitioner's complaint that, because of the absence of provision for reimbursement of his wasted expenses, he had to bear an excessive burden, had an abstract or theoretical flavour. It was not suggested that the petitioner was in any real sense prejudiced in his ability to pursue his appeal. It was not said that he could not afford to proceed. The extent of any wasted expenses was only vaguely identified. They might yet prove to be negligible. It was going too far, in such circumstances, to say that, in the absence of provision for recovery of that indeterminate amount of wasted expenses, the whole system imposed on the petitioner an excessive burden, and that his Convention rights under Article 1 of the First Protocol and Article 8 of the Convention were therefore infringed.

We are not persuaded that the respondents' reliance on Masson is well-founded. That case was concerned with whether, in a criminal context, the extent of the remedy in costs available against the prosecutor constituted an infringement of the applicants' Article 6 rights. The present case, as argued before us, is not based on Article 6. It is a civil case. The liability in expenses which is said to be necessary for compliance with Article 1 of the First Protocol and Article 8 of the Convention is a liability on the part of the state as representing the decision-maker. The circumstances are thus, in our view, so different that what was said in Masson is of no help to the respondent.

In assessing whether the system imposes an excessive burden on the petitioner, it is no doubt right, in the abstract, to do as senior counsel for the petitioner did and look to the aggregate burden which the system imposes. But in the circumstances of the present case, where it is accepted that the system of listed building control in principle pursues a legitimate aim, and it is not suggested that any feature of the system other than the absence of provision for recovery of wasted expenses imposes an excessive burden, it is in our view legitimate to approach the petitioner's case by asking on what basis it can be said that that particular feature renders the burden excessive. No objective criterion for distinguishing a reasonable burden from an excessive burden was suggested on the petitioner's behalf. It seems to us that the petitioner's complaint is concerned with a matter of relatively fine detail. The system enforcing listed building control falls into a number of stages. So far as the inquiry stage is concerned, provision for awards of expenses as between the parties is made. There is no challenge to the policy of making such an award only against a party who has acted unreasonably, although there is room for departure from that policy if circumstances so require. It is therefore accepted that at that stage, a party seeking to resist restriction of his freedom to deal with his property as he wishes may have to incur irrecoverable expense in doing so. That is not said to impose an excessive burden. The stage of appeal to the court falls within the ordinary rules of the court as to awards of expenses. The award will generally follow success, but the successful party will not make full recovery. That is not said to constitute an excessive burden. It is implicit in the nature of the section 58 appeal that, if a decision of a reporter or the respondents is quashed, the procedure will require to be resumed at the point it had reached when the error was made. To that extent, the risk of having to cover ground already covered is implicit in the system. It cannot, however, be assumed that an error on the part of the reporter or the respondents connotes fault on her or their part. The resumed procedure is not, in our view, of a different nature from the rest of the process. It is a stage which is expressly contemplated, and eminently foreseeable. That the amount of the additional expense may not be capable of being determined ab ante does not distinguish that stage of proceedings from any other stage. At any stage, the amount of expense will depend on the nature and complexity of the matter in issue, the extent to which competing contentions are advanced by parties to the process and a range of other exigencies. We do not see how the stage of the procedure which the petitioner now faces can be distinguished from the other stages which have already taken place, or how the absence of provision for recovery of wasted expenses from the decision-maker can be said to convert an acceptable burden into an excessive burden. It would be unusual in our legal system for the decision-maker to be made liable for expense incurred by one of the parties to the proceedings. It cannot, in our view, be assumed that extra expense incurred following the quashing of a reporter's decision under section 58 will always properly be regarded as resulting from "fault" on the part of the reporter. Moreover, we are of opinion that there is force in the submission that a provision which rendered the respondents potentially liable for expenses wasted as a result of error in law on the part of a reporter might adversely affect the impartiality (or at least the perceived impartiality) of the reporter.

In all the circumstances we are not persuaded that a construction of section 265(9) which makes no provision for recovery of expenses from the respondents in the events which have occurred would have the effect that the system of listed building control places an excessive or disproportionate burden on the petitioner, so as to lead to the conclusion that his rights under Article 1 of the First Protocol and Article 8 of the Convention have been infringed. Even if we are, in the context of an issue relating to the expenses of legal proceedings, less obliged to accord deference to the discretionary area of judgment of the legislature, as suggested by Laws L.J. in International Transport Roth, we are satisfied that the omission of provision enabling the respondents to order themselves to bear the petitioner's wasted expenses lies well within that discretionary area of judgment. We take that view irrespective of whether the focus should be on the total burden imposed on the petitioner by the listed building control system, or on the added burden flowing from his inability to recover wasted expenses. It follows, in our opinion, that there is no occasion for applying to the construction of section 265(9) the special approach provided for in section 3(1) of the Human Rights Act. It is therefore unnecessary for us to give further consideration to whether, if that section had had to be applied, it would have been possible on that account to give section 265(9) a construction different from the one which we have given to it by applying ordinary principles of construction.

Result

In these circumstances we are of opinion that the petitioner's challenge to the validity of the decision expressed in the letter of 20 June 2001 fails. We shall therefore refuse the reclaiming motion and adhere to the Lord Ordinary's interlocutor of 8 March 2002 sustaining the respondents' first plea-in-law and dismissing the petition.