Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Perth and Kinross Council v. Scott [2004] ScotCS 249 (02 November 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/249.html
Cite as: 2005 SCLR 297, [2004] ScotCS 249

[New search] [Help]

Perth and Kinross Council v. Scott [2004] ScotCS 249 (02 November 2004)

OUTER HOUSE, COURT OF SESSION

A744/03

OPINION OF LADY SMITH

in the cause

PERTH & KINROSS COUNCIL

Pursuers;

against

MRS ANNE SCOTT

Defender:

________________

Pursuers: Cullen QC; MacRoberts

Defender: Ferguson QC; Simpson & Marwick

22 November 2004

Introduction
[1] Since 1995, the defender has owned Sundial House, a dwellinghouse on Brae Street, Dunkeld. The house was built on a hillside in, according to the defender's averments, 1740 and its rear wall, which is below ground level, forms a retaining wall to the uphill slope on the south-west of Brae Street. In September 1998, contractors engaged by the defender began carrying out substantial building works at the house and on 16 October 1998, the retaining wall collapsed. As a result, part of Brae Street became unstable.

[2] In exercise of the power available to them under section 91(2) of the Roads(Scotland) Act 1984 , the pursuers served a notice on the defender requiring her to carry out certain works to restore stability to the retaining wall within 28 days. She did not comply with the notice. The pursuers then carried out the necessary works of stabilisation at an averred cost of £144,818.21 plus VAT. In the present action they seek to recover those costs from the defender. The defender denies that the pursuers have any right to recover those costs from her. The case came before me on the procedure roll on 10 November 2004.

The Roads ( Scotland ) Act 1984
[3] The provisions relied on by the pursuers as entitling them to recover the sum sued for are in the following terms:

"91.- (2) Subject to subsections (3) and (4) below, where it appears to the roads authority that a hedge, tree, shrub, fence or wall on or near a road is in such a condition that it, or part of it, is likely to cause danger by falling on the road, or that a retaining wall (whether or not near the road) is in such condition that there is constituted a danger to the road or to road users, they may, by notice served either on the owner of the hedge, tree, shrub, fence or wall, or on the occupier of the land on which it is situated, require him within 28 days from the date of the service of the notice to carry out such work as will obviate the danger.

..................

141.- (1) Where by notice under this Act a roads authority require works or excavations to be executed within a specified period then, subject to subsection (3) below, if those works or excavations are not timeously executed they may themselves execute them :...........

(2) Subsections (6) and (7) of section 140 of this Act shall apply in relation to works or excavations executed by a roads authority under subsection (1) above and to the person who had been required to execute the works or excavations as those subsections apply to entry and inspection under subsection (1)(f) of that section and to the person who has been granted the consent or authorisation.......

(4) In the application to the foregoing provisions of this section of the definition of 'works' in section 151(1) of this Act the expression shall also include such -

removal and reinstatement as is mentioned in section 51(3) or 87(1);
steps as are mentioned in section 57(1) , 67 or 93(2);
replacement repair or putting into good condition as is mentioned in section 66(2);
alteration as is mentioned in section 83(1);
work as is mentioned in section 91(1) or (2); and
removal as is mentioned in section 92(2),

of this Act . "

The reference back to section 140 (6) and (7) is to the following provisions:

"140.-(1) A person authorised by a roads authority shall , on producing , if so required , some duly authenticated document showing his authority in that regard , have a right to enter any land at all reasonable hours for the purpose of -

.................

(e) ascertaining whether any work required to be done by or under this Act by any person in relation to any land has been done ;

(f) inspecting any work to which a consent or authorisation given under this Act relates ;

..................

(6) A roads authority shall be entitled to recover the expenses reasonably incurred by them in doing anything in relation to any land under -

subsection (1) (e) above from the person who has been required to do the work;
subsection (1) (f) above from the person to whom the consent or authorisation has been granted,

but may remit any sum , or any part of that sum , due to them under this subsection as they think fit."

The terms of section 91(3) were also considered. Insofar as relevant, they provide:

" .....if in the opinion of the roads authority the danger referred to in subsection (2) above is imminent they may dispense with the service of the notice required by that subsection , may themselves carry out the work forthwith , and may recover the expenses reasonably incurred in so doing from the owner or occupier."

The defender denies that these provisions give rise to any such entitlement.

Submissions for the defender:
[4] Mr Ferguson QC, for the defender, sought decree of dismissal. He submitted that the provisions of the 1984 Act relied on by the pursuers only conferred a limited power to recover expenses under the notice procedure route. The pursuers were only, he said, entitled to recover if the circumstances were those set out in subparagraphs (e) or (f) of section 140(1). Such a construction was reasonable, intelligible and not unreasonable or absurd. Parliament had intended that the power be so limited. By contrast, a roads authority was entitled to recover their costs if they had had to act in an emergency situation.

[5] In a course of submissions that focused very much on the terms of section 140 of the 1984 Act, Mr Ferguson referred to the presumption that the literal meaning of a statutory provision was to be followed (Bennion : Statutory Interpretation; 4^thedition). The maxims enumeratio unius est exclusion alterius and expressio unius est exclusion alterius, which were said to be interchangeable, were relied on, under reference to section 140(1) containing a list, only two items of which were referred to in subsection (6) and to the fact that section 140(1)(g) applies to:

" carrying out anything which is required , by a notice served by the authority under this Act , to be done by any person in relation to any land and which the person has failed to do in accordance with the notice ;" .

The clear result in this case was that the costs of carrying out works required in terms of a section 91(2) notice where the owner or occupier failed to do so were not recoverable. If Parliament had intended that the roads authority should be able to recover the costs of the type sought in the present action, it could have made express provision to entitle it to do so. It had not done so. This was not a case of plain or obvious drafting error which might allow for words to be read in to the express provisions or to be excluded therefrom. It was not as though Parliament had intended that the roads authority should not incur any cost, as was evident from section 91(5) which empowers a roads authority to make such contribution as it thinks fit towards any expenses reasonably incurred by a person in carrying out work required under section 91(2).

[6] Mr Ferguson recognised that the previous legislation, the Roads (Scotland) Act 1970, in terms of section 19(5), had made express provision for the recovery by a roads authority of the costs of carrying out works where an owner or occupier had been ordered to carry them out and had failed to do so. He recognised that, if his argument was correct, then the position would be that a roads authority would have been able, under the old Act, to recover the costs of carrying out works where an owner or occupier defaulted in respect of an order to do so but not under the 1984 Act. His answer to that apparent anomaly was to indicate that the 1984 Act was not a consolidating statute. It modernised the old law. Further, work on retaining walls was not covered by the 1970 Act. Section 19 applied only to hedges, trees, shrubs and fences which were a danger to roads. There would be a world of difference between carrying out works on them and the more major exercise of carrying out works on a retaining wall. In the case of the latter it was only reasonable that the roads authority pay and that is something which was reflected in the change in the drafting of the legislation.

[7] In an alternative submission which appeared to be in anticipation of what he thought might be the argument against him, Mr Ferguson addressed the possibility of a rectifying construction. This was not a case where such a construction would, he said, be justified (Bennion at p.750 - 1 , 758-760; Inco Europe Ltd & Others v First Choice Distribution & Others [2000] 1WLR 586; Western Bank v Schindler [1977] 1Ch 1). Further, it would be illegitimate to use Hansard since the provisions under scrutiny were not ambiguous or obscure and their literal meaning did not lead to an absurdity (Pepper v Hart [1995] AC 593).

Submissions for the pursuers:

[8] Mr Cullen QC for the pursuers submitted that the defender had no relevant defence to the action and that proof should be restricted to quantum. At the outset, he indicated that the pursuers accepted that this was not a case of ambiguity, obscurity or uncertainty about the provisions in the legislation. It was not a case of drafting error. He did not ask for any of the interpretative techniques anticipated by the defender, to be applied. Rather, as became apparent when he developed his argument, his submission was that this was a case of very clear and careful drafting in which very specific techniques had been used.

[9] Mr Cullen submitted that the defender's approach gave no meaning or content to the wording of section 141(2), a provision which, on his detailed analysis, was designed to give roads authorities power to recover the cost of carrying out works where an owner or occupier has failed to comply with a notice served under section 91(2). That it did so all made sense. If the implications of the defender's argument were reflected upon, it was clear that the approach for which the defender argued would be absurd. It would also mean that a substantial change in policy, in favour of owners and occupiers and to the detriment of ratepayers, had been effected when the 1984 Act was enacted, without any apparent justification for it.

[10] In the course of his careful and detailed analysis of the provisions of section 141(2), Mr Cullen drew attention to the definition of "works" contained in section 140(4), a provision which extended that definition to include a number of operations which a roads authority is empowered to carry out under section 141(1), if a notice has been served under section 91(2), in a case of default. In the case of each of these provisions concerning works, no provision was made in the section concerning the works to be carried out, for recovery of the cost of so doing. That was because there was one provision for recovery of cost in all cases , namely section 141(2). It was of interest to observe that the annotator, an experienced local authority solicitor, referred to section 141(2) as conferring on the roads authority the right to recover the costs of such works. He also reviewed the provisions of the 1970 Act where, he submitted, the drafter had simply adopted a different approach of providing, in each section detailing the various works that the roads authority would, in the event of default by the owner or occupier, carry out, for recovery of the costs of doing so. The parts of sections 140(6) and (7) relating to the recovery of expenditure by the roads authority were, through the terms of section 141(1) carried forward so as to apply to a different set of circumstances. Section 140 applied only to costs incurred in exercising the powers of entry provided for there. The defender's approach gave no content to the "as if" sense of section 141(2). If the defender's approach were adopted, it was difficult to see what section 141(2) covered at all. The technique adopted by the draftsman was a sophisticated one, possibly unnecessarily so, but it resulted in clear provision for the recovery of expense in circumstances such as the present case.

[11] Regarding policy, Mr Cullen submitted that if the defender's approach were adopted, when a notice was served under section 91(2), there would be no compulsitor on an owner to carry out works since, if he sat back and did nothing, the work would be carried out by the roads authority at no expense to him. Yet, he said, surely the policy of the Act was to have owners and occupiers execute the necessary works at their expense? Notices served under section 91(2) would be of no practical effect if there was no sanction. If the defender's approach was correct, there would be an impetus on roads authorities to classify every case as one involving imminent danger so as to entitle them to do the necessary works and recover the cost thereof under section 91(3).

Discussion:
[12] The Roads (Scotland) Act 1970 empowered the relevant roads authority, in some circumstances, to serve notices on owners or occupiers to carry out works and, in the event of their failing to do so, to carry out the work themselves. Those were the various circumstances set out in sections 18, 19 and 24 of that Act. Section 18 applied to cases where an obstruction had fallen accidentally onto a road. Section 19 applied to cases where hedges, trees or shrubs were overhanging a road in such a way as to cause a danger, interference, or obstruction. Section 24 applied to cases where obstructions had been placed on or excavations made in a road without authorisation. In each case, the drafter of the Act provided for recovery by the roads authority of the cost of doing so within the body of the section (see: sections 18(3), 19(6) and 24(4)). In the case of section 18(3), the right to recovery was subject to the proviso that the owner of the object had to be traceable and would not be liable to pay if he had taken reasonable care to secure that the object did not cause or contribute to the obstruction.

[13] The Roads (Scotland) Act 1984 provides for many more occasions on which a roads authority can serve a notice on owners and occupiers requiring them to carry out works and, in the event of their failing to do so, empowering the roads authority to carry out the works themselves. The list of "works" referred to in section 141(2), for instance, covers works on land to remove trees where authorisation for their planting has been withdrawn, to remove structures erected, deposited or placed on roads, to eradicate a danger arising from ongoing road works, to eradicate a danger caused by doors, windows or other similar features where they open outwards onto a road, to remove dangers at corners, bends or junctions in roads, to eliminate dangers arising from hedges, shrubs, fences or walls, including retaining walls, and to remove trees planted without any authorisation. In none of these cases does the provision containing the right to serve a notice requiring the owner to carry out the works include any provision empowering the roads authority to carry out the works in the event of default. That power is to be found in section 141(1), a provision which covers all instances of notices having been served under the Act for works to be carried out within a specified period of time. Nor do the provisions that contain the right to serve such notice include the power to recover costs.

[14] Further, section 86 of the 1984 Act empowers the roads authority to require the removal and disposal of builder's skips where they cause danger and, if there is default and the owner is traceable, to recover the costs of doing so from the proceeds of the skip and the balance from the owner. Similarly, section 89 empowers the roads authority to require the removal of accidental obstructions on a road, if the owner of such an obstruction can be traced and, in the case of default, to remove the object and recover the cost of doing so from such an owner. In the case of both section 86 and section 89, the recovery of costs incurred will be dependent on the owners of the moveable property involved being traced in circumstances where it is clearly envisaged that there might be difficulties in doing so. Perhaps not surprisingly, the Act does not appear to involve any apprehension that there will be any difficulty in ascertaining who is the owner or occupier of any land involved in works of the sort that are covered by the list in section 141(4).

[15] Section 59 empowers the roads authority to require the owner of an obstruction placed in a road to remove it immediately and, in the event of default, emergency or inability to trace the owner, to remove it themselves and, under subsection (4), to recover the cost of doing so from the owner, if traceable. Section 60 requires the lighting of obstructions and excavations and empowers the roads authority to do so if the person responsible fails to do so and in that event, under subsection (2), to recover the cost from such person. Section 89(1), empowers the roads authority to require the owner of an accidental obstruction to remove it if they can be traced and, in the event of default, to remove it themselves and, under subsection (3) to recover the cost of doing so from the owner, if traceable. Section 91(3) empowers the roads authority to carry out work without going through a notification procedure in respect of dangers from trees, shrubs, fences and walls if the danger is imminent and, in that event, to recover the cost of doing do from the owner or occupier.

[16] Section 88 of the 1984 Act stands out as being in a different category. There, the roads authority are empowered to carry out work to remove or alter any projection from a building which is interfering with safe or convenient passage along a road without first requiring the owner to do so. In that event, there is no question, it seems of the roads authority being entitled to recover the cost of doing so from the owner. On the contrary, in terms of subsection (2) of that section, the roads authority are obliged to pay compensation to anyone who sustains damage as a result of the removal or alteration of such a projection.

[17] The overall scheme of the 1984 Act is, therefore, to empower the roads authority to carry out a multiplicity of works on land belonging to or occupied by and in respect of moveable property belonging to, other persons, all in furtherance of their responsibility to manage and maintain the roads in their area. In most cases the Act provides that they will only have power to do so if they have first served a notice on the relevant owner or occupier but it is recognised that there will be occasions when that is not practicable or reasonable such as where the owner of moveable property cannot be traced or where an imminent danger requires to be attended to forthwith. In those events, the roads authority are empowered to do the necessary work without having first served a notice. In all those cases, the relevant sections make express provision for the recovery by the roads authority of the reasonable expense of carrying out that work, tailored in the individual case to meet the particular set of circumstances with which the section is dealing. Thus provision is made, in the case of builder's skips, for the costs first to be defrayed from the proceeds of sale of the skip and, in the case of accidental obstructions, for the owner to be relieved of liability if they have taken reasonable care to secure that the object did not cause the obstruction that in fact ensued.

[18] However, it is evident that, unlike the drafting style adopted in the 1970 Act, in none of the cases where the roads authority require to go through a notification procedure before they are empowered to carry out the necessary works, do the provisions conferring the right to serve the notice deal with either the right to carry out the works in case of default or with the right to recover the cost of those works. The result of the defender's approach would be that in all these cases, the roads authority would, under the provisions of section 141(1) have the right to do the work but would have no right to recover the cost of having done so unless it fell within the descriptions set out in subparagraphs (e) and (f) of section 140(1). It is, in fact, not difficult to envisage circumstances in which the roads authority would properly be viewed as having not only the right but the duty to do the work if the owner or occupier fails to do so, given the extent to which the relevant provisions cover instances of potential danger to road users.

[19] The fundamental flaw in the defender's approach is twofold. Firstly, it fails to account fully for the whole provisions of section 141. Secondly, it fails to recognise that section 140 is concerned not with providing authority for the carrying out of works or the recovery of the cost of doing so but with the provision of a power of entry in certain cases and the recovery of costs that may be incurred in exercising that power and only in respect of exercising that power. If a person has been ordered, in terms of a notice, to carry out certain work by a roads authority, it seems reasonable to expect them to give access to the roads authority to ascertain whether the work has been done without the authority incurring cost in doing so and reasonable that that person meets any such costs incurred if they do not grant free access (section 140(1)(e)). Similarly, if a person has requested permission to carry out certain work, it again seems reasonable to expect that that person will give access to the authority to inspect the work for which permission has been given without the authority requiring to incur cost in doing so and, again, reasonable that that person meets any such costs incurred if they do not grant free access (Section 140(1)(f)). A simple example of the sort of expense that could be anticipated would be the cost of employing a locksmith to afford entry to locked premises and secure them after inspection. Conversely, the other circumstances set out in section 140(1) are not ones in respect of which it is foreseeable that the roads authority will incur cost in exercising the power of entry and in which it will always be reasonable to allow them to recover from the owner the cost of doing so. Although much was made on behalf of the defenders of the failure to refer, in subsection (6), to subparagraph (g) of subsection (1), which refers to the carrying out by a roads authority of works required under a notice, if the pursuers are correct in their interpretation of section 141(2), there would be no need so to provide because any cost involved in securing entry to do the works would be recoverable as part of the cost of carrying out the works.

[20] Having given careful consideration to the wording used in section 141(2) of the 1984 Act, I am readily satisfied that the drafter has adopted a concise method to indicate that in every case where a roads authority has executed works in circumstances where an owner or occupier has failed to comply with a notice of the sort referred to in section 141(1), the authority is entitled to seek to recover "the expenses reasonably incurred by them in doing anything in relation to any land" from the person required, in terms of such a notice to carry out the work, and is also empowered "to remit any sum, or any part of that sum, due to them ....as they think fit" (see: section 140(6)). That is the clear import of the wording used in section 141(2) and, in particular, the technique of extracting the right to recover expenses from a provision, namely section 140(1)(f), which covers a set of circumstances which is different from any of those which arise under the notification and default cases, and applying that right to all of the latter. The drafter has used a different technique from that adopted in the 1970 Act and from that adopted in the moveable property and imminent danger cases to which I have already referred. But that is not to say that he has not achieved the result contended for by the pursuers. It is an understandable approach where the newer legislation provides for so many more instances of entitlement to serve notices and, accordingly, so much more by way of potential for works being carried out in cases of default. Simply put, the drafter has chosen to set out one provision for recovery of expense which will apply to a wide ranging set of circumstances instead of setting out that same provision at length in each relevant section. The result is neater and involves a more economic use of language. It also achieves the consistent projection forward of the principles inherent in section 140(6) firstly, that it is the person who has caused the expense that is the person from whom the roads authority may seek recovery and secondly, that the roads authority has a discretion to remit the sum involved, in whole or in part. This interpretation is in fact a matter of following carefully the literal meaning of the text used and thus accords with the importance of respecting the primacy of the text, as referred to by Bennion at p.740, a text relied on by the defender, and with the presumption also there mentioned that the literal meaning of an enactment ought to be followed.

[21] I find reassurance that the above interpretation is the correct one from the fact that the result contended for by the defender would produce an absurd result. It would produce a result whereby it would be in the interests of property owners and occupiers to ignore notices served on them by roads authorities, secure in the knowledge that by so doing, they would be liable to bring about the result that the work would be carried out by the roads authority at no cost to them. And it is not difficult to envisage circumstances where the value of their property could be enhanced through the carrying out of such work. That is a result that is so unattractive as to be immediately open to question as is one which would mean that when the 1984 Act was enacted, roads authorities lost significant rights of recovery of expense that they had had for some fourteen years without anyone apparently noticing. Nor is there any apparent reason in principle for imposing on a roads authority the cost of restoring the stability of a retaining wall, the condition of which may be due to lack of reasonable care on the part of the owner, yet relieving it of the cost of removal of an obstruction which has fallen onto the road due to a lack of reasonable care by the relevant owner (section 89(3)), a cost which could be substantial depending on the scale of the accident involved.

[22] Further, that Parliament were giving very careful attention to all questions arising from the circumstances in which roads authorities might carry out works on property belonging to other persons is evident from the enactment of section 88 which covers circumstances in which it is not only clear that it was thought not to be appropriate that they be entitled to recover the cost of the works but, rather, that their responsibility extend to bearing the burden of paying compensation. It is not, in these circumstances, likely that through error, as seemed to be suggested on behalf of the defender, Parliament forgot to make provision for the recovery of costs in all those cases where roads authorities were at risk of incurring costs arising directly from the default of owners and occupiers. That seems particularly so when, as here, the costs so arising could be substantial.

Conclusion:
[23] I shall, in these circumstances, repel the defender's first and second pleas in law and allow a proof restricted to quantum.