OUTER HOUSE, COURT OF SESSION
[2006] CSOH 152
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P1525/04
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OPINION OF LORD KINCLAVEN
in the cause
RAMZAN BIBI Petitioner;
for
Judicial Review of a purported determination of the Scottish Ministers in terms of Section 50(5) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 dated 4 July 2003
Respondents:
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Petitioner: Barne, Advocate; Drummond Miller WS
Respondents: W J Wolffe, Advocate: The Solicitor to the Scottish Executive
6 October 2006
Introduction
[1] This is a Petition for Judicial Review of a purported determination made by the Scottish Ministers in terms of Section 50(5) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 on 4 July 2003.
[2] The determination relates to the recovery from the Petitioner of the expenses involved in emergency works undertaken by Glasgow City Council on the Petitioner's property at 7 James Street, Glasgow.
[3] The Petitioner challenged the determination on various grounds which were set out in some detail in the Petition as amended.
[4] Most of the Petitioner's complaints were directed towards Historic Scotland. Historic Scotland is an agency within the Scottish Executive Education Department and is responsible to Scottish Ministers for, inter alia, safeguarding the nation's historic environment.
[5] The Scottish Ministers opposed the Petition and lodged Answers.
[6] Both parties lodged a substantial number of productions.
[7] At the first hearing, Mr Barne appeared for the Petitioner. Mr Wolffe appeared for the Scottish Ministers. There was no appearance for Glasgow City Council.
[8] In essence, Mr Barne presented three arguments on behalf of the Petitioner, namely:-
1. that there has been a breach of Article 6(1) of the European Convention on Human Rights (the "ECHR") because of unreasonable delay by the Scottish Ministers;
2. that the Scottish Ministers failed to take into consideration relevant factors; and
3. that the Scottish Ministers acted irrationally.
[9] Mr Wolffe argued that each of those arguments should be rejected.
[10] In the whole circumstances and for the reasons outlined below, I am satisfied that there has been a breach of Article 6(1) of the European Convention on Human Rights (the "ECHR") because of unreasonable delay by the Scottish Ministers.
[11] However, questions of delay aside, I was not satisfied that the Scottish Ministers had failed to take into consideration relevant factors and I was not satisfied that the Scottish Ministers had acted irrationally.
[12] In the result, as requested by both parties, I shall put the case out "By Order" for a hearing on further procedure.
[13] I would outline the background and summarise my reasons as follows.
The Parties
[14] The Petitioner is Ramzan Bibi. She was heritable proprietor of 7 James Street, Glasgow, which is the "Property" concerned.
[15] The Respondents are the Scottish Ministers.
[16] Glasgow City Council (the "Council") are the relevant planning authority in terms of chapter V of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 ("the 1997 Act"). The Council have not lodged answers.
The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997
[17] The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (the "1997 Act") is central to this case. It came into force on 27 May 1997.
[18] Section 28 of the 1997 Act relates to listed building purchase notices. In certain circumstances (where listed building consent is refused or granted subject to conditions, or is revoked or modified by an order under section 21 or 24) the owner or lessee of the building may serve on the planning authority a notice (referred to as a "listed building purchase notice") "requiring that authority to purchase his interest in accordance with sections 29 to 33 of the Act".
[19] Section 49 of the 1997 Act relates to urgent works to preserve unoccupied listed buildings.
[20] Section 49 provides inter alia that:-
"(1) A planning authority may execute any works which appear to them to be urgently necessary for the preservation of a listed building in their district. ...
(3) The works which may be executed under this section may consist of or include works for affording temporary support or shelter for the building. ...
(5) The owner of the building shall be given not less than 7 days' notice in writing of the intention to carry out the works.
(6) The notice shall describe the works proposed to be carried out."
[21] Section 50 of the 1997 Act relates to the recovery of expenses of works under section 49.
[22] Section 50 provides inter alia that:-
"(1) This section has effect for enabling the expenses of works executed under section 49 to be recovered.
(2) The planning authority ... may give notice to the owner of the building requiring him to pay the expenses of the works.
(3) Where the works consist of or include works for affording temporary support or shelter for the building -
(a) the expenses which may be recovered include any continuing expenses involved in making available apparatus or materials used, and
(b) notices under subsection (2) in respect of any such continuing expense may be given from time to time.
(4) The owner may within 28 days of the service of the notice represent to (the Respondents) -
(a) that some or all of the works were unnecessary for the preservation of the building,
(b) in the case of works affording temporary support or shelter, that the temporary arrangements have continued for an unreasonable length of time, or
(c) that the amount specified in the notice is unreasonable or that the recovery of it would cause him hardship.
and (the Respondents) shall determine to what extent the representations are justified.
(5) (The Respondents) shall give notice of (their) determination, the reasons for it and the amount recoverable -
(a) to the owner of the building and
(b) to the planning authority if they carried out the works."
The Building (Scotland) Act 1959
[23] The Building (Scotland) Act 1959 (the "1959 Act") was also referred to by counsel.
[24] In particular, section 13 of the 1959 Act relates to action to be taken in respect of buildings found to be dangerous.
[25] Section 13 provides inter alia that:
"(1) If it appears to the local authority that any building is dangerous ... they shall forthwith -
(c) serve on the owner of the building a notice requiring him within a period of seven days from the service of the notice to begin, and within such further period as may be specified in the notice, being a period of not less than twenty-one days from the expiration of the first mentioned period, to complete to the satisfaction of the local authority, such operations for the repair, securing or demolition of the building as may be so specified, being operations necessary in the opinion of the local authority to remove the danger."
[26] Sections 16 of the 1959 Act makes provision for an appeal to the sheriff in relation to inter alia any order under section 13(2) of the Act requiring the execution of operations.
The Determination in the Present Case
[27] In the present case, by determination dated 4 July 2003 (the "Determination"), the Respondents specified that the amount recoverable from the Petitioner by the Council was £53,056.88, as set out in an invoice sent to the Petitioner by the Council dated 13 July 1998.
[28] The determination is Production No. 6/1 (and 7/67) of Process. I need not rehearse its full terms which I take as read.
The Pleadings
[29] The current Petition incorporates amendments made on 15 February 2006.
[30] The Answers for the Scottish Ministers are No 13 of Process. The Answers were adjusted so as to delete the last sentence of Answer 6 ("The last of these ... November 2002.").
The Orders Sought
[31] So far as relevant, the Petitioner seeks the following orders (in paragraph 3 of the petition):-
3(a) Reduction of the Determination; and ...
3(d) Declarator that in delaying until 4 July 2003, the Respondents have acted in breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
[32] The Petitioner also craves the court to pronounce such further order, decrees or orders (including an order for expenses) as may seem to the court to be just and reasonable in all the circumstances of the case.
The Grounds of Challenge
[33] In summary, the Petitioner challenges the Determination on the following grounds:-
(a) that the Determination was ultra vires of the Respondents;
(b) that the Determination proceeded on an error of law;
(c) that the Determination proceeded without taking into account material considerations;
(d) that the Determination was wholly unreasonable and perverse; and
(e) that the Respondents have acted in breach of the Petitioner's rights in terms of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
[34] Those propositions can be distilled down to the three arguments which were advanced by Mr Barne.
[35] As each case requires to be considered according to its own particular facts and circumstances it might be helpful to set out some of the background as described by the Petitioner.
The Background - as described by the Petitioner
[36] The Property concerned (according to paragraph 5 of the petition) is a category B listed building. It had been the Logan and Johnstone School of Domestic Economy and was then the Dolphin Arts Centre. In November 1996, the Property was seriously damaged by fire. On 27 March 1997, the Council served a notice on Sultan Mehmood "as owner/tenant" of its intention to execute works urgently necessary for the preservation of the Property in terms of section 97 of the Town and Country Planning (Scotland) Act 1972 (the "1972 Act"), as amended. The Petitioner had signed a power of attorney in favour of Mr Mehmood in 1995. In terms of the notice, the necessary remedial works were stated to be:
"Erect such roof coverings as are necessary to ensure the wind and watertightness of the areas of the building where the former roof coverings have been previously removed both by fire and/or by hand, ensuring the structural integrity of the external walls is addressed."
By letter dated 4 April 1997, the Council intimated to Mr Mehmood that it withdrew the notice of 27 March 1997 and issued a fresh notice in terms of section 97 of the 1972 Act. The nature of the remedial works that were stated to be necessary in terms of the new notice was the same as in the earlier notice. The Council then served a notice dated 17 June 1997 on Mr Mehmood in terms of section 13 of the Building (Scotland) Act 1959 (the "1959 Act"). In terms of this notice, Glasgow City Council required Mr Mehmood, as owner of the Property, to begin by 24 June 1997 to "reinstate the structural integrity of the fire damaged building". The notice specified that the works were to be started by the Petitioner by 24 June 1997 and were to be completed to the Council's satisfaction by 15 July 1997. In terms of sections 13(2) and 13(4) of the 1959 Act, if the Petitioner had not started the building operations within seven days after expiration of the period in the notice, then the Council could seek to complete the works itself, after giving the Petitioner an opportunity to be heard. At no time was the notice served under the 1959 Act withdrawn. By letter dated 10 July 1997 addressed to Ramzan "Bini", Glasgow City Council served another notice in relation to the Property in terms of section 49 of the 1997 Act (the "Section 49 Notice"). In terms of the Section 49 Notice, the Council gave Ramzan "Bini", as owner of the Property, notice that on or after eight days of the date of the Section 49 Notice the Council intended to execute works urgently necessary for the preservation of the Property. In terms of the Section 49 Notice, the urgently necessary remedial works were listed as follows:
"1. Clear out remaining debris from the building;
2. Carry out works of stabilisation to walls;
3. Carry out wall-head protection where necessary;
4. Restore water tightness to roof of two-storey section of building where the roof is still largely intact; and
5. Board up all openings appropriately."
In terms of section 49(5) of the 1997 Act, the owner of a property shall be given not less than 7 days' notice in writing of the intention to carry out works. The Section 49 Notice was sent recorded delivery. It was sent to Mrs "Bini" at 19 X Road, Glasgow. The Petitioner at that time lived at 15 X Road, Glasgow. The Royal Mail attempted to deliver the Section 49 Notice to the Petitioner and an identical notice, together with a withdrawal of the notice dated 4 April 1997, under separate cover to Mr Mehmood on 17 July 1997 at 8.10 a.m. The notice sent to Mr Mehmood was sent to 15 X Road, Glasgow. No-one was present at either address to sign for either letter. Another attempt was made at delivery on 18 July 1997. Again, no one was present at either address to sign for either letter. A slip indicating that an attempt to deliver the letter had been made was left at both addresses. According to the Council, the Section 49 Notice was sent by Recorded Delivery on 11 July 1997. Mr Mehmood saw the Council's approved contractor working on site throughout the week of 11 July to 18 July 1997. The Council confirmed that stewardship of the site was passed to the Council's approved contractor on 18 July 1997. Accordingly, so the Petitioner avers, even if the Section 49 Notice was sent by Recorded Delivery on 11 July 1997 and even if the Council's approved contractor did not take stewardship of the site until 18 July 1997, the Petitioner was not given the statutory period of notice before the works were commenced.
[37] The Petitioner further avers (in paragraph 6 of the petition) that on 18 June 1997 the Council issued tender documents to four contractors in relation to the emergency works at the Property for return by 26 June 1997. The Council then accepted the tender of WJ&D (Contracting) Ltd (the "Contractor") in the sum of £41,866.00. At the conclusion of the works, the Contractor submitted to the Council an invoice dated 19 September 1997 for the sum of £48,880. The Council then sent an invoice dated 13 July 1998 in the sum of £53,056.88 to the Petitioner. The Petitioner believes and avers that this invoice was intended by the Council to be a notice requiring the Petitioner to pay the expenses of the works in terms of section 50(2) of the 1997 Act. By letter dated 16 July 1998, the Petitioner then engaged the "appeal" provisions in terms of section 50(4) of the 1997 Act. The Petitioner's "appeal" was handled by Historic Scotland on behalf of the Respondents. During this period various written submissions were submitted by the Petitioner and the Council. Finally, the Respondents issued by letter dated 4 July 2003 the Determination in terms of which the Respondents found the representations made by the Petitioner to be unjustified. The Property was sold to a developer in 2000. The developer retained and continues to retain funds due to the Petitioner to cover the potential costs of the works undertaken by the Council.
[38] It is a matter of agreement (in paragraph 6 of the petition) that Historic Scotland is an executive agency, formerly of the Secretary of State for Scotland and now of the Respondent and that it has no separate corporate personality.
[39] Mr Barne also indicated that for present purposes paragraph 7 of the petition can simply be omitted. The issues raised are no longer live.
[40] The Petitioner further contends (in paragraph 8 of the petition) that, esto the Council do have a legal basis on which to seek recovery and the Respondents were entitled to make a determination in terms of section 50(4) of the 1997 Act, the Respondents have failed to take into account relevant factors in the Determination and have made an error in law. In particular, the Petitioner avers that in paragraphs 20 to 23 of the Determination, the Respondents set out the reasons why they consider the sum sought by the Council to be reasonable. The Respondents do not take into account the fact that the Petitioner was not given the statutory period of notice after the Section 49 Notice had been served before works commenced. The Petitioner was not given sufficient time to consider the terms of the Section 49 Notice. The Petitioner was not given sufficient time to consider the relationship between the notices served on Mr Mehmood on 4 April 1997 and 17 June 1997 and the Section 49 Notice. The Section 49 Notice named the Petitioner incorrectly. At paragraph 24 of the Determination, the Respondents find that the alleged invalidity of the Section 49 Notice is not a matter "within their jurisdiction". It was submitted by the Petitioner that the fact that she was not given the statutory period of notice is a matter that falls within the jurisdiction of the Respondents when considering whether the amount sought by the Council is unreasonable. The unreasonableness of the amount sought by the Council can only be assessed in the context of the Section 49 Notice and how it was served. The unreasonableness of the amount sought by the Council can only be assessed, the Petitioner contends, in the context of the other notices that had been served in relation to the property and which were still "live". Reference was made to section 7 of the Interpretation Act 1978; section 6 and part II of schedule 1 of The Human Rights Act 1998; CCSU v Minister for Civil Services [1985] 1 AC 374; Watson, Gow & Co v Glasgow Assessor 1910 SC 807; and R v Secretary of State for the Environment, ex parte Hampshire County Council (1982) 44 P. & C.R. 343.
[41] Section 7 of the Interpretation Act 1978 provides inter alia that "unless the contrary intention appears" service by post "is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post."
[42] The Petitioner also contends (in paragraph 9 of the petition) that the Section 49 Notice did not provide sufficient specification of the nature and potential cost of the works that the Council intended to undertake. The Petitioner had no way of determining from the terms of the Section 49 Notice what the extent and the cost of the works the Council intended to undertake was going to be. The Section 50 Notice did not particularise with sufficient detail the expense incurred. More detailed information was available to the Council in terms of the said tender documents but such information was not provided to the Petitioner. By failing to take into account the lack of information provided to the Petitioner in terms of the Section 49 Notice and the Section 50 Notice in assessing the unreasonableness of the amount the Council seeks to recover, the Respondents had failed, it was submitted, to take into account a relevant consideration in the Determination. Further, the works may have been carried out either in terms of the notice served on 4 April 1997 or in terms of the Section 49 Notice. The Petitioner was not given fair notice of the precise nature of the works that were to be undertaken. Reference was made to section 6 and part II of schedule 1 of The Human Rights Act 1998; CCSU v Minister for Civil Services [1985] 1 AC 374; Watson, Gow & Co v Glasgow Assessor 1910 SC 807; R v Secretary of State for the Environment, ex parte Hampshire County Council (1982) 44 P. & C.R. 343; and R v Camden London Borough Council, ex parte Comyn Ching & Co. (London) Ltd and Another (1983) 47 P. & C.R. 417.
[43] The Petitioner also submits (in paragraph 10 of the petition) that it is irrational for the Respondents to find that those works that were specified in the Section 49 Notice but that were not specified in the notice dated 4 April 1997 were "urgently necessary for the preservation" of the Property. The Determination gives no reasons why the requirements in terms of the Section 49 Notice to "clear out remaining debris from the building", to "carry out wall-head protection where necessary" and to "board up all openings appropriately" might be deemed "urgently necessary for the preservation" of the Property on 10 July 1997 when they had not been deemed urgently necessary in terms of the earlier notice dated 4 April 1997. In any event, it was irrational for the Respondents not to find that the clearing out of debris from the Property and the boarding up of all openings in the Property was unnecessary for the preservation of the Property. Reference was made to section 6 and part II of schedule 1 of The Human Rights Act 1998; CCSU v Minister for Civil Services [1985] 1 AC 374; and Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.
[44] Separatim, and this was the first argument advanced by Mr Barne, the Petitioner contends (in paragraph 11 of the petition) that the Respondents in delaying issuing the Determination until almost five years from the date that the said invoice was issued by the Council to the Petitioner have breached the Petitioners' Convention rights, as set out in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention"). In receiving representations from the Petitioner and the Council in terms of the 1997 Act and in issuing the Determination, the Respondents were acting as a tribunal established by law for the purposes of Article 6(1). The Respondents' continuing failure to issue a determination in terms of section 50(4) of the 1997 Act contravened the Petitioner's right to a fair and public hearing "within a reasonable time" in terms of Article 6(1). In particular, the Petitioner avers that by letters dated 13 May 1999, 21 May 1999, 6 July 1999, 12 October 1999, 3 December 1999, 4 February 2000, 21 June 2000, 8 August 2000, 12 September 2000, 15 August 2001, 20 August 2001, 5 September 2001, 14 August 2002, 11 November 2002, 30 January 2003 and 1 July 2003 the Petitioner's agents pressed the Respondents for progress and information in relation to the determination. The Petitioner contends that the Respondents' decision therefore falls to be reduced. Reference was made to the Human Rights Act 1998; section 57(2) of the Scotland Act 1998; and Lafarge Redland Aggregates Ltd v Scottish Ministers 2001 SC 298.
[45] With reference to the Respondents' averments in answer 11, the Petitioner inter alia explained and averred that on 8 October 1999 the Council wrote to the Petitioner's agents confirming that there were two appeals outstanding in relation to the Property and that the appeal "against Recovery of Expenses" was "presently sisted pending the outcome of the Purchase Notice Appeal". Neither the Petitioner nor the Petitioner's agents had been told that the appeal had been sisted. This was explained to Historic Scotland by letter dated 12 October 1999 in terms of which Historic Scotland were asked "to process that appeal and assign a hearing for it as soon as possible". The request was repeated in a letter dated 4 February 2000. It was further explained and averred that by letter dated 28 November 2000 Historic Scotland for the first time identified the procedure to be followed during the course of the appeal. It was also explained and averred that the additional papers lodged by the Petitioner in November 2002 updated the factual circumstances surrounding the Property.
The Pleas-in-law for the Petitioner
[46] Mr Barne referred me to both the pleas-in-law for the Petitioner which were in the following terms:-
"1. The Respondents through their executive agency Historic Scotland having breached the Petitioner's Convention rights, decree should be granted in terms of paragraphs 3(a) and 3(d) hereof.
2. The Respondents in the Determination having failed to take into consideration material considerations, et separatim having made an error of law, et separatim having acted ultra vires, et separatim having acted unreasonably, decree should granted in terms of paragraphs 3(a) and 3(b) hereof, failing which decree should be granted in terms of paragraphs 3(a) and 3(c)."
The Productions
[47] I will return (below) to provide some detail of the productions (in the context of an outline chronology of events) but at this stage it might be helpful simply to indicate in general terms the documents relied upon by the parties.
[48] The Petitioner lodged a bound volume of productions (6/1 to 6/15) which comprised the various documents referred to in the Schedule to the petition.
[49] The Petitioner's productions comprised:-
6/1. The Determination by the Respondents dated 4 July 2003.
6/2. The notice served by the Respondents on Mr Mehmood dated 27 March 1997 with schedule headed "Necessary Remedial Works".
6/3. The letter from the Respondents to Mr Mehmood withdrawing previous and fresh notice, both dated 4 April 1997 (original production 3 for the Petitioner). This was sometimes referred to during the hearing as "the second 1972 Act notice".
6/4. The notice served on Mr Mehmood in terms of section 13 of the Building (Scotland) Act 1959 dated 17 June 1997 (original production 4 for the Petitioner).
6/5. The notice served on Razman "Bini" by the Respondents dated 10 July 1997 which was sometimes referred to as "the section 49 notice".
6/6. Recorded delivery slips dated 17 July 1997 and 18 July 1997 (original production 8 for the Petitioner).
6/7. The invoice submitted to the Petitioner by the Respondents dated 13 July 1998 which was sometimes referred to as "the section 50(2) notice".
6/8. The letter from the Petitioner's agents intimating appeal dated 16 July 1998 (original production 1 for the Petitioner).
6/9. Submissions and productions (which the Petitioner contended had been submitted to the Respondents), comprising:
(a) The document entitled "Appeal to the Secretary of State for Scotland". Counsel agreed that this (Production 6/9(a)) appears to be a response to the letter from Historic Scotland dated 2 March 1999 (Production 7/19).
(b) The Document entitled "Appeal to the Secretary of State for Scotland Against Glasgow City Council for Recovery of Expenses of Urgent Works" Booklet 1. I was referred in particular to paragraphs 2.1, 2.2, 3.2, 5.1, 6.2, and 7.0. It is stated, inter alia, (in paragraph 6.2) that:
"The Council has not provided a fully detailed and itemised account showing the cost of each item and quantifying the exact work down (sic) in each location of the building. This would have allowed an independent Quantity Surveyor to fully check the account. ..."
(c) The Document entitled "Productions 1 to 45" "Booklet 1".
(d) The Document entitled "Appeal to the Secretary of State for Scotland Against Glasgow City Council for Recovery of Expenses of Urgent Works" Booklet 2 (incorporating Productions 46 to 88 Booklet 2). I was referred in particular to paragraphs 10.0, 10.0(f), 12.1, 14.4, and 15.3 and to the attached document numbered 51.
(e) The Document entitled "Appeal to the Secretary of State for Scotland Against Glasgow City Council for Recovery of Expenses of Urgent Works" "Report Booklet 3", and
(f) The Document entitled "Appeal to the Secretary of State for Scotland Against Glasgow City Council for Recovery of Expenses of Urgent Works" "Productions 100 to 140" "Booklet 3".
6/10. The Statement of Case on behalf of Glasgow City Council.
6/11. Report No PL/51/97 together with Report by Director of Planning and Development (production GCC 3A).
6/12. The letter inviting tenders for work dated 18 June 1997 with enclosures (production GCC 9).
6/13. The Report on Tender dated 30 June 1997 (production GCC 10).
6/14. Invoice submitted by WJ & D (Contracting) Ltd. dated 19 September 1997 (production GCC 12), and
6/15. Various letters from the Petitioner's solicitor (Francis Collins of Collins & Co, Paisley) to the Respondents (Historic Scotland). There are eleven letters in total which for ease of reference can be numbered 6/15(1) to 6/15(11).
[50] The Respondents lodged three volumes of Productions (Numbers 7/1 to 7/72).
[51] There were various discussions about productions during the hearing but the position might be summarised as follows.
[52] Mr Wolffe was content to proceed on the basis that the Production 6/9(b) and Production 6/9(c) were enclosed with the letter dated 22 February 1999 (Production 7/18) from Messrs Collins and Co to Historic Scotland. However, those documents (6/9(b) & (c)) were apparently not sent by Historic Scotland to the Council until they were enclosed with the letter dated 28 November 2000 (Production 7/42). It was not clear whether certain pages in Production 6/9(b) (those from the tenth page onwards) were included with Production 7/18 but counsel were agreed that this was not material. Production 6/9(d), which contains updated documents, was sent by Messrs Collins & Co to Historic Scotland by letter dated 24 January 2001 (Production 7/45). Production 6/9(e) was sent to the Council (minus the productions) but not to Historic Scotland.
[53] Against that background I turn to the submissions for the Petitioner.
The submissions for the Petitioner
[54] On behalf of the Petitioner, Mr Barne invited the court:-
(1) to sustain the first plea-in-law for the Petitioner and to put the case out By Order for further procedure; failing which,
(2) to grant decree in terms of the second plea-in-law for the Petitioner and that in terms of paragraph 3(a) only.
[55] Mr Barne did not move for any order in terms of paragraph 3(b) or paragraph 3(c) but he invited the court, in the event of success, to award the expenses to the Petitioner.
[56] The Petitioner's arguments were developed under the following three headings:-
(1) Breach of Article 6(1);
(2) Failure to take into consideration relevant factors; and
(3) Irrationality.
[56] I shall deal with each of those three arguments in turn.
Argument (1) for the Petitioner - Breach of Article 6(1)
[58] Argument (1) for the Petitioner relates to the alleged breach of Article 6(1) of the European Convention on Human Rights (the "ECHR").
[59] Mr Barne referred me to the Statement of Fact 11 in the Petition (which I have set out above) and developed his submission as follows.
[60] If the Respondents are found to have breached the Petitioner's article 6 rights, this would mean that the Respondents have acted ultra vires (Scotland Act 1998, section 57(2)). As a result the determination would fall to be reduced. Reference was made to:- R v HM Advocate 2003 SC (PC) 21 and also to Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72.
[61] The Petitioner's appeal under section 50 engages the protection afforded by Article 6(1). Reference was made to:- Porter v McGill [2002] 2 AC 357; Porter v United Kingdom (2003) 37 EHRR CD8; and Robins v United Kingdom (1998) 26 EHRR 527 (para 29).
[62] The various rights afforded by Article 6(1) of the ECHR are independent of each other. This means that unreasonable delay alone will amount to a breach of Article 6(1). There is no need for there to have been any prejudice. Reference was made to Porter v McGill [2002] 2 AC 357 at paras 108 and 109.
[63] The relevant start date for assessing whether there has been any unreasonable delay is 16 July 1998. That was the date on which the Petitioner's agents identified that the Petitioner wished to appeal. The letter from Collins & Co dated 16 July 1998 is production 7/4 (and production 6/8). The relevant end date is 4 July 2003. That was the date on which the Respondents issued the determination. The determination is production 7/67 (and 6/1).
[64] The relevant period is just under five years.
[65] In assessing whether any delay is reasonable or not, the court has regard to the circumstances of the case, having regard in particular to:-
(1) the complexity of the case;
(2) the conduct of the parties and the relevant authorities. Reference was made to:- Robins v United Kingdom; Porter v McGill at para 110; Dyer v Watson 2002 SC (PC) 89; and
(3) the importance of the case to the parties.
[66] In relation to the complexity of the case, the Petitioner submitted:-
(1) that there is nothing complex about the facts of the case. Unlike the Porter case, the amount of documentation to be considered was limited.
(2) that procedurally, the appeal was simple. It did not involve intricate procedure or various tiers of jurisdiction, as was the case in Porter.
(3) that in terms of section 50 of the 1997 Act, an appeal has to be brought within 28 days. That, it was submitted, indicates that an appeal under section 50 is intended to be expeditious and of a summary nature.
(4) that the determination runs to a total of five pages.
(5) that comparison might be made with the adjudication procedures under the Housing Grants, Construction and Regeneration Act 1996 in terms of which adjudicators have 28 days, extendible to 42 days, to issue a decision in often complex building disputes. Mr Barne also mentioned the Scheme for Construction Contracts (Scotland) Regulations 1998.
[67] In relation to the conduct of the parties (the Petitioner, the Council and the Respondents) the Petitioner referred in particular to the following events:-
(1) The Petitioner intimated an appeal on two broad grounds by letter dated 16 July 1998 (production 7/4). A brief further representation was made to Historic Scotland by letter dated 16 September 1998 (7/7).
(2) The Council responded to the Petitioner's initial representations by letter dated 3 November 1998 with various enclosures (7/11).
(3) Historic Scotland forwarded the contents of the Council's letter of 3 November 1998 to the Petitioner by letter dated 2 December 1998. In this letter, Historic Scotland requested the Petitioner to make any "final comments".
(4) By letter dated 22 February 1999, the Petitioner's agents sent to Historic Scotland documents (7/18, enclosing 6/9(b) and 6/9(c)). These documents were resent to Historic Scotland.
(5) By letters dated 2 March 1999, Historic Scotland sent to the Petitioner a written statement prepared by the Historic Buildings Inspectorate (7/19). On the same day, Historic Scotland sent the written statement prepared by the Historic Buildings Inspectorate to the Council, together with the Petitioner's bundle of documents (7/20). The Council was given three weeks within which to respond, otherwise "it will be assumed that you have no further comments to make".
(6) In October 1999, the Petitioner confirmed to the Council and Historic Scotland that the Petitioner was not proceeding with the appeal in respect of the purchase notice but that she wished to proceed with the appeal under section 50 (7/28). The Petitioner complained that the section 50 appeal appears "to have been sisted" without anyone telling the Petitioner or the Petitioner's agents.
(7) The Petitioner requested information regarding the progress of the appeal by letters dated 3 December 1999 (7/33), 4 February 2000 (6/15(3)), 21 June 2000 (6/15(4)) and 8 August 2000 (7/37).
(8) By letter dated 5 September 2000 (7/38), Historic Scotland stated: "It was always the case that the procedure under section 50(4) of the Act could not go ahead until the matter of the Listed Building Purchase Notice was resolved." In the letter, Historic Scotland request further information on the sum being "unreasonable" and on the question of "hardship" on the basis that: "To date, you have not expanded on either of these statements." The Petitioner was given until 29 September 2000 to respond.
(9) By letter dated 12 September 2000, the Petitioner's agents confirmed that the issue of hardship was no longer being pursued and that the other issues had been addressed in the documents supplied (7/39). On 2 October 2000, the Petitioner forwarded a further copy of the documents previously sent in February 1999 to Historic Scotland (7/40).
(10) By letter dated 28 November 2000, Historic Scotland identified for the first time the procedure to be followed in the section 50 appeal (7/41).
(11) On 24 January 2001, the Petitioner's agents sent a second bundle of documents to Historic Scotland (7/45 enclosing 6/9(d)). These were said to update the earlier documents submitted.
(12) On 20 September 2001, the Council sent to Historic Scotland its Statement of Case with productions (7/52, 7/68 and 7/71).
(13) By letter dated 11 November 2002 (7/53(2)) the Petitioner's agents submitted more materials to the Council but not to Historic Scotland.
(14) On 4 July 2003 the Respondents issue their determination (7/67).
[68] There are some other features in the chronology which I mention below.
[69] In relation to the importance of the case to the Petitioner pointed out:-
(1) that a sum equivalent to the amount in the Section 50 Notice has been retained by the purchaser of the Property; and
(2) that the lack of a determination has left the Petitioner uncertain of her rights in relation to the retained sums for an extended period of time.
[70] In considering the question of whether the delay in issuing the determination was unreasonable, the Petitioner's submissions were as follows:-
(1) Other applications relating to the Property and involving the Petitioner, the Council and the Respondents should not be taken into consideration. This fact is founded upon by the Respondents in paragraph 15 of the Determination.
(2) It was Respondents' duty to establish the procedures and timescales to be followed in the course of the appeal. Reference was made to Mavronichis v Cyprus (2001) 31 EHRR 54 (at para 39) and Philis v Greece (No 2) (1998) 25 EHRR 417 (at para 49). The Respondents only established the procedure to follow in a letter dated 28 November 2000.
(3) Administrative pressure of business is no excuse.
(4) There were long periods when Historic Scotland remained inactive e.g. 2 March 1999 to 5 September 2000; 24 January 2001 to 20 September 2001; September 2001 to 4 July 2003. Mr Barne compared those with the delays in the Robins case, para 34.
(5) The Petitioner's conduct has not accounted for the delay. The Petitioner has complied with the timescales set for her by the 1997 Act and Historic Scotland. In particular, the Petitioner cannot be criticised for providing updated documents in January 2001 having regard to (one) the date the urgent works had been completed, and (two) the fact that in November 2000 Historic Scotland identified what the procedure was going to be for the first time. Mr Barne referred to Production 7/41.
(6) There was no procedure by which the Petitioner could expedite matters. The Petitioner wrote repeatedly to Historic Scotland requesting progress to be made.
[71] I now turn to argument (2).
Argument (2) for the Petitioner - Failure to take into consideration relevant factors
[72] Argument (2) for the Petitioner relates to the alleged failure of the Scottish Ministers to take into consideration relevant factors.
[73] Mr Barne referred me to Statements of Fact 8 and 9 (which I have set out above) and he developed his submission as follows.
[74] In terms of section 49 of the 1997 Act, the Council were required to give not less than 7 days' notice of its intention to undertake urgently necessary works.
[75] Notwithstanding the factual dispute as to when the contractor took control of the Property, the requisite 7-day notice period was not provided. The letter was sent recorded delivery on 11 July 1997 and the contractors took possession of the site on 18 July 1997. Reference was made to section 7 of the Interpretation Act 1978.
[76] At the time the section 49 Notice was served, there was in place a "live" notice which had been served on 4 April 1997 under the predecessor legislation, being section 97 of the Town and Country Planning (Scotland) Act 1972 (6/3(3)). An earlier notice served under section 97 of the 1972 Act dated 27 March 1997 had been expressly withdrawn by the Council (6/3(1)).
[77] In addition to the live section 97 Notice, a notice was served on 17 June 1997 in terms of section 13 of the Building (Scotland) Act 1959 requiring Sultan Mehmood to undertake certain works. The works were to be completed by 15 July 1997. Notwithstanding this deadline, the Council purportedly served the section 49 Notice on 12 July 1997.
[78] The Petitioner submitted that, in considering in terms of section 50(4)(c) whether the amount specified in the notice is unreasonable, Historic Scotland are entitled to consider, and indeed are obliged to consider, the whole circumstances and in particular:-
(1) The proliferation of notices, some of which were not withdrawn;
(2) The different identifications of the works variously identified in the various notices;
(3) The failure to give the statutory notice period of 7 days under the section 49 Notice. Reference was made to R v Secretary of State for the Environment, ex parte Hampshire County Council (1982) 44 P & CR 343);
(4) The lack of specification of the works detailed in connection with the section 49 notice (6/5). Reference was made to:- R v Secretary of State for the Environment, ex parte Hampshire County Council and R v Camden L.B.C. (1982) 44 P & CR 343; and
(5) The lack of specification of the works detailed in connection with the section 50(2) notice (6/7). Reference was made to Bolton v Jolley [1989] 1 PLR 97.
[79] Mr Barne also pointed out that, at paragraph 24 of the determination, the author states in relation to the suggestion that the Section 49 Notice was invalid: "The Scottish Ministers note these representations but are of the view that these are not matters within their jurisdiction under section 50(4) of the 1997 Act and therefore there is no basis on which these other issues can be taken into account in reaching their determination under the 1997 Act."
[80] The Petitioner submitted that this is an error of law, rendering the Determination liable to reduction.
[81] The Petitioner also submitted that the nature of section 49 notices is such that a broad view should be taken when considering whether the sum sought to be recovered is reasonable. In particular:-
(1) Section 49 notices do not require owners to do anything. A section 49 Notice simply advises the owner that the planning authority (or the Scottish Ministers) intend to undertake urgently necessary works. There is no executive effect of a section 49 notice on an owner.
(2) There is no statutory appeal procedure (c.f. sections 13 and 16 of the Building (Scotland) Act 1959) and therefore an expansive view is envisaged.
(3) Owners are particularly vulnerable in relation to section 49 notices and any failures by the Council to specify what is envisaged are significant; and
(4) As in the present case with a proliferation of notices, if judicial review of the section 49 notice was the correct procedure, that may require the Petitioner to judicially review more than one notice.
[82] For these reasons, the Petitioner submitted that the whole circumstances behind the issuing of the Section 49 Notice could and should be taken into consideration by the Respondents.
[83] Mr Barne also submitted that the form of the section 50(2) notice can also be taken into consideration when considering the question of reasonableness.
Argument (3) for the Petitioner - Irrationality
[84] Argument (3) for the Petitioner relates to alleged irrationality.
[85] Mr Barne referred me to Statement of Fact 10 (which I have set out above) and developed his submission as follows.
[86] The works identified in the notice dated 4 April 1997 (Production 6/3) and in the Section 49 Notice (Production 6/5) are different. .
[87] Historic Scotland does not consider why works which were identified in the Section 49 Notice as being urgently necessary were not considered to be urgently necessary in the notice of 4 April 1997. These are:
(1) clearing out the remaining debris;
(2) stabilisation of all walls (as opposed to the structural integrity of the external walls);
(3) carrying out wall-head protection; and
(4) boarding up all openings.
[88] In failing to have regard to the differences between the notices, it was submitted, the Respondents were acting unreasonably.
[89] If this is not a question of irrationality, then the disparities between the works identified between the various notices should be considered in assessing the reasonableness of the sum sought to be recovered.
The submissions
for the Respondents
[90] Mr Wolffe, for The Scottish
Ministers, argued that each of the Petitioner's arguments should be rejected.
[91] In particular, Mr Wolffe invited me to sustain the first, third and seventh pleas-in-law for the Respondents and to dismiss the petition.
[92] The relevant pleas-in-law for the Respondents were in the following terms:-
"1. The Petitioner's averments being irrelevant et separatim lacking in specification the petition should be dismissed. ...
3. The Determination not being liable to be reduced decree should not be pronounced as first craved. ...
7. There having been no breach of the Petitioner's Article 6 rights decree should not be pronounced as fourth craved."
[93] The Respondents' answers to the petition are in No 13 of Process as adjusted.
[94] Most of the matters raised by the Respondents can be dealt with under reference to the various productions (which I will mention in greater detail as part of a chronology of events below).
[95] The Respondents Answers included the following contentions.
[96] In Answer 5 the Respondents aver that, so far as they are aware, the Petitioner did not take steps to challenge the validity of the section 49 Notice or the lawfulness of the works carried out by the Council thereunder.
[97] In Answer 6 the Respondents explain that in addition to her initial letter intimating an appeal against the terms of the account the Petitioner produced several written submissions with supporting documentation to the Secretary of State and the Respondents.
[98] In Answer 7 it is averred that both the Petitioner and the Respondents have treated the invoice dated 13 July 1998 as a notice in terms of section 50(2) of the 1997 Act. It is averred that the Petitioner did not challenge the validity of the section 50(2) notice.
[99] In Answer 8 it is averred inter alia that any inadequacies in the service or terms of the section 49 notice were not matters relevant to the question of whether the amount specified in the section 50 notice was reasonable.
[100] In Answer 9 it is averred inter alia that any deficiency in the information provided in the section 49 notice was not relevant to the question of whether or not the amount specified in the section 50 notice was reasonable.
[101] In Answer 10 it is averred inter alia that the question for the Respondents was not whether the works were "urgently necessary for the preservation" of the Property, but whether or not the representations by the Petitioner that the works were unnecessary were justified. Reference was made to R v Secretary of State for Wales ex parte City and County of Swansea (1998) 78 P & CR 317. The Respondents contended that they were entitled to conclude that the works carried out were necessary for the preservation of the Property.
[102] In Answer 11 the Respondents also provide an outline chronology with references to the productions (which I will mention further below).
[103] In overview, the chronology from 16 July 1998 to 4 July 2003 showed inter alia:- that consideration also required to be given to a listed building purchase notice under section 28 of the 1997 Act; that Historic Scotland requested further information from the Petitioner's solicitors; that some correspondence was not received by Historic Scotland; that the date originally offered for the public inquiry (to be held in relation to the listed building purchase notice) was not suitable for the Petitioner and a date in November 1999 was fixed (instead of July); that there were times when no response or information was received from the Petitioner's solicitors; that reminders required to be sent to the Council and that the Petitioner provided further submissions and productions.
[104] The Respondents aver that in all the circumstances there has been no breach of the Petitioner's Article 6 rights.
[105] Mr Wolffe developed the Respondents' arguments as follows.
Response to Argument (1)
[106] In relation to Article 6 and the question of "delay" Mr Wolffe started by stating four propositions:-
1. that a relatively high threshold must be crossed before it can be said that a period of delay is so unreasonable that there has been a breach of Article 6;
2. in assessing whether or not the length of period crosses that threshold one has to address all the relevant circumstances. Mr Wolffe accepted that the particular circumstances referred to by the Petitioner were relevant - complexity of the case, conduct of the parties and importance of the case to parties.
3. although it is not necessary for the Petitioner to show prejudice, the presence or absence of prejudice is a relevant consideration; and
4. in a civil case, what is at stake for the individual is a matter of some significance.
[107] Mr Wolffe recognised that the course which procedures took in this case was unsatisfactory but it did not follow that there had been a breach of Article 6. The question was not simply whether Historic Scotland acted unreasonably. The question was whether, in all the circumstances, there has been a breach of Article 6 having regard to the high threshold.
[108] Mr Wolffe referred me to Dyer v Watson 2002 SC (PC) 89 and; A and Others v Denmark (1996) 22 EHRR 458.
[109] What is at stake for the Petitioner was a significant circumstance in the context of the present case. Without seeking to diminish the importance of the decision in the present case, Mr Wolffe suggested that in the scale of decisions to be adjudicated upon (such as criminal proceedings, liberty, children, and serious personal injury) the present case was not of the highest magnitude. Indeed as the statute does not provide for interest to run against the Petitioner, Mr Wolffe submitted that the Petitioner has had the benefit of the delay. The property has been sold, a sum equivalent to the notice has been retained and the Petitioner has abandoned her hardship claim. Any prejudice was relatively limited.
[110] In relation to the conduct of the parties, Mr Wolffe made a number of observations on the course of events which are probably best reflected in the outline chronology (below).
[111] It was entirely appropriate, submitted Mr Wolffe, that the section 50 question be left over until the question of listed building purchase had been decided. It had a bearing particularly on the question of hardship.
[112] It was not unreasonable, submitted Mr Wolffe, for Historic Scotland to ask for further information. The period up until September 2001 is explicable by reference to the purchase notice and the conduct of the parties.
[113] Mr Wolffe also pointed to the production of new materials.
[114] Mr Wolffe accepted that it was not the most complex of cases but equally, he submitted, it was not straightforward. There was a degree of complexity. The Petitioner's submissions were wide-ranging.
[115] Ultimately the question was whether, having regard to the whole circumstances and the high threshold, the delay was so inordinate as to be a breach of Article 6.
[116] Mr Wolffe accepted that things might have been done better, but that was not the point.
[117] Mr Wolffe accepted that Historic Scotland did not take the initiative to send the Petitioner's documents (Production 6/9(b) and 6/9(c)) out to the Council until 28 November 2000 (Production 7/42). The Respondents had no explanation as to why that was not done until then.
[118] Mr Wolffe also referred me to Section 103(1) of the Scotland Act 1998 and to R v HM Advocate 2003 SC (PC) 21 and Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72, [2003] UKHL 68.
Response to Argument (2)
[119] In relation to the alleged failure of the Scottish Ministers to take into consideration relevant factors, Mr Wolffe developed submissions along the following lines.
[120] It was important to bear in mind that this was a judicial review of the Respondent's decision under section 50(4) of the 1997 Act.
[121] It was not a judicial review of the original notice under section 49 or of the notice under section 50(2).
[122] It was not for the Respondents to exercise some form of general supervisory jurisdiction.
[123] This was judicial review of the determination not the notice(s).
[124] Mr Wolffe referred me to R v Secretary of State for Wales ex parte City and County of Swansea (1999) 78 P & CR 317 and R v Secretary of State for the Environment, ex parte Hampshire County Council (1982) 44 P & CR 343.
[125] If the questions to be challenged fall outwith section 50(4) then the challenge should be by way of judicial review rather than by representations under section 50(4).
[126] Mr Wolffe submitted that the approach adopted by the Secretary of State in the Hampshire case was too broad and that the basis for such an approach was not at all clear.
[127] The correct starting point in the present case, submitted Mr Wolffe, is section 50(4)(c).
[128] The question is not the broad one of whether it would be reasonable for the Respondents to require the Petitioner to pay the amount specified. Otherwise there would be no need to deal separately with "hardship".
[129] It is the narrower question, set out in section 50(4)(c) of whether "the amount specified in the notice is unreasonable".
[130] Section 50 relates to "recovery of expenses of works under section 49".
[131] The Petitioner herself has distinguished between (a) the reasonableness of the amount and (b) the validity of the notice, for example in 6/9(b) (paragraphs 2.1 and 2.2). Reference was also made to productions 7/11 to 7/14.
[132] The approach in the Swansea case should be preferred to that in the Hampshire case.
[133] The factors founded on by the Petitioner in the present case do not really bear on the reasonableness "of the amount".
[134] The Petitioner may not be without a remedy in relation to broader questions - but not in the present petition.
[135] Failure to give 7 days notice, for example, does not go to the reasonableness of the amount at least not in the circumstances of this particular case.
[136] Mr Wolffe did not accept that the notice lacked specification in the present case. In any event, the notice in the Hampshire case gave no specification "not a clue on its face as to what the authority had in mind" (at page 350). The estimate would, however, have been sufficient.
[137] The observations in the Jolley case, referred to by the Petitioner, are obiter. Bolton Metropolitan Borough Council v Jolley [1989] 1 PLR 97.
[138] In any event, the factors relied upon by the Petitioner do not have a bearing on the reasonableness of the amount and that was the question for the Scottish Ministers.
[139] Mr Wolffe accepted that if he was wrong in his approach to section 50(4) then decree of reduction would follow.
[140] He submitted, however that his interpretation was correct.
Response to argument (3)
[141] Finally, Mr Wolffe responded briefly to the Petitioner's argument (3) in relation to alleged irrationality.
[142] The question was not one of "urgent" necessity.
[143] In any event, the short answer was that the test for the Scottish Ministers is not the one which the Petitioner was addressing.
[144] That linked back to Mr Wolffe's submissions in relation to argument (2) which I have outlined above.
[145] Having outlined the competing submissions for the parties, in some detail, I can now turn to discuss the various issues raised.
Discussion
[146] By way of general background I was referred to Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 and to Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345.
[147] In particular, I was referred to the well known statement by Lord Emslie in Wordie (at page 347) namely:-
"A decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular it will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed it. These propositions, and others which are not of relevance for the purposes of these appeals, are, it appears to me, amply vouched by many decided cases ..."
[148] I was also referred to "Judicial Review", by Lord Clyde and Denis Edward, at paragraphs 14.04 and 14.08.
[149] As it is important to consider the detailed facts and circumstances of this particular case, I propose to outline a chronology of events before returning to consider each of the Petitioner's three arguments.
An outline chronology of events
[150] I would outline the chronology of events along the following lines-
"I refer to recent correspondence regarding your client, Mrs Ramzan Bibi's appeal against the terms of an account for works carried out by Glasgow City Council under Section 49 of the above Act (the 1997 Act).
I enclose correspondence from Glasgow City Council with regard to your client's appeal and I would be grateful for any final comments you may wish to make in order to assist the Secretary of State's determination in accordance with Section 50(4) of the 1997 Act."
"We have been asking you to confirm that the second appeal which is in respect of the amount of the account for repairs issued by Glasgow City Council was being processed. It is not clear from our correspondence whether that is in fact the case or whether it is simply the appeal in respect of the purchase notice which is being processed. Perhaps you could confirm."
"I write to confirm that the Historic Building Inspectorate are processing your appeal under section 50 of the above Act (the 1997 Act).
However, it should be noted that due to the Listed Building Purchase Notice served on Glasgow City Council, the Inspectorate's efforts are at the moment focused on the upcoming Public Local Inquiry. It should also be noted that the Inspectorate still await further information on your client's appeal under section 50."
"We refer to the above and to previous correspondence. We enclose a copy of Glasgow City Council's letter which confirms that there are in fact two Appeals. We have written to you under separate cover confirming that our client is not proceeding with the Appeal in respect of the purchase notice. Unknown to us the other appeal in respect of the amount of the compulsory notice account would appear to have been sisted. We have written to you on several occasions enquiring about the status of this appeal without any reply.
No-one contacted us, or our client, with regard to the appeal being sisted and our client is somewhat at a loss to understand how that could have happened without her knowledge.
Could you therefore process that appeal and assign a hearing for it as soon as possible."
"We have written to you on numerous occasions asking for progress in respect of this appeal without any success and perhaps you could confirm the position."
"... We have written to you on several occasions enquiring about the status of this appeal without any reply. No one contacted us, or our clients, with regard to the appeal being sisted and our client is somewhat at a loss as to understand how that could have happened without her knowledge. Could you therefore process that appeal and assign a hearing for it a soon as possible. We look forward to hearing from you as a matter of urgency."
"We refer to the above and to previous correspondence. We spoke with your office several months ago when you indicated that this case had not yet been set down for a hearing as this was the first appeal of its kind and that you were not sure about the correct procedure to be followed. Our client is concerned that the delays which have been allowed to creep into this case and wishes to have the case set down for a hearing as soon as possible. Unfortunately he is suggesting that if this cannot be processed then he wishes to lodge a formal complaint with the secretary of state."
"We refer to the above matter and to previous correspondence. We are instructed by our client to complain about the inordinate delays in fixing a hearing in respect of this appeal. This appeal has now been outstanding for more than 2 years. When we last managed to speak to someone from your office we were advised that the difficulty was that they did not know exactly what to do procedurally with the case. Quite frankly that is not good enough and our client would wish an explanation as to what is happening with this case and when a hearing is to be fixed."
"It was always the case that the procedure under section 50(4) of the Act could not go ahead until the matter of the Listed Building Purchase Notice was resolved."
"We refer to the above matter and to your letter of 5th September.
First of all out client no longer is pursuing the issue of hardship. The reason for that is as you correctly state i.e. that the property is now being sold. There has been a retention made by the purchaser in respect of the amount of the emergency repair works and therefore there will be sufficient funds to pay in the event of an unsuccessful appeal. There is no point therefore in our client seeking to argue hardship in these circumstances.
However our client is still of the view that the works were unnecessary to the extent carried out. That has already bee (sic) more than adequately covered in the documentation provided. Our client's view is compounded by the fact that that there were then further works required to be instructed."
"We can confirm first of all that our client is no longer pursuing the issue of hardship. The reason for that is, as you correctly state, the property has now been sold. Had the appeal been processed in what our client considers to be a reasonable time then that argument would have been open to her but the passage of time has now overtaken the situation. There has been a retention made by the purchasers in respect of the amount of the emergency repair works were carried out and therefore there would be sufficient funds to pay in the event of an unsuccessful appeal. There is no point therefore in our client seeking to argue hardship in these circumstances.
So far as our client's ground of appeal that the amount claimed by the planning authority was unreasonable, we enclose a further copy of documentation lodged by our client which we consider fully sets out the arguments to be presented. Should you require any further information please do not hesitate to contact us."
"... Under the above act (the 1997 Act), Mrs Bibi's appeal that some or all of the works were unnecessary for the preservation of the property will be determined under an informal written representation procedure. This case will not therefore be passed to Scottish Executive Inquiry Reporters for the appointment of a Reporter ..."
"We refer to the above matter and to previous correspondence. Perhaps you could confirm the current position given that this matter has been outstanding for so long."
"We refer to the above and to your letter of 16 August and our letter of 20th August. Our client is of the view that this matter has been allowed to drag on far too long and that with the greatest of respect you are allowing too much time to Glasgow City Council to respond to the documentation which has been lodged. Our client does not wish to have to complain further to the Secretary of State about this matter but the delays here are giving him no option."
"We refer to the above matter and to previous correspondence. Our client is very disappointed to note that there is still no date fixed for this appeal. In terms of Article 6 of the European Convention on Human Rights our client is entitled to a fair hearing within a reasonable period of time. As our client is concerned therefore her right are being breached given the inordinate delays here and we would be obliged if you could confirm what problem exists with regard to fixing of a date."
"We refer to the above matter and to previous correspondence. We are extremely surprised and disappointed that no date has yet been fixed for this Appeal. This matter has now been dragging on for several years without a date being fixed and our client insists that a date be fixed now."
"We refer to ... our telephone conversation on Friday. You indicated that this case had been sent out for a report to be prepared by an architect and a quantity surveyor. We confirmed that we had not heard anything from you with regard to that report and you indicated that the report and a decision letter should have been issued. You were to check the file and get back to us. We would be obliged if you could do so immediately given the length of time this matter has been outstanding."
"We refer to the above matter and to our recent telephone conversation. You indicated that your recollection was that a surveyor had been instructed and a report obtained and that the matter should have been communicated to us along with a decision letter. We confirm that we have received no communication from you and you undertook to get the file and check the position. That was over a week ago and perhaps you could confirm the position by return."
"Our client has quite frankly run out of patience. When we spoke to you about 6 weeks ago you indicted that you believed the decision had been made after a survey had been carried out and that you would locate the file and then get the decision letter issued. The delays in this case have been nothing short of outrageous and we must insist on an immediate response."
"This is an extremely frustrating matter for our client and is quite unacceptable. Mr Baxter has failed to keep us advised of developments and his letter advising us of the position was only in response to a letter of complaint. Since then no further progress has been made and some 2 months has gone by. We therefore would be obliged to hear from you immediately with regard to the position."
"Yet again we are in a period of correspondence now being ignored. We note that Glasgow City Council have similarly written to you in the past few weeks complaining about the delay here. Our client's position is that she is of the view that her human rights are being breached in that there is clear right to a fair hearing within a reasonable period of time. The number of times we have had to write and telephone to seek progress is now becoming ridiculous ..."
"I am writing with reference to the above Recovery of Expenses Appeal which has now been outstanding for a very considerable period. ... As you will see ... the appeal relates to an invoice dating from July 1998 and the Council's submissions concerning the Appeal were substantially finished in September 2001. ... My request in January for a reply by return of post produced no response, and my reminder to Scott Baxter dated 11 February 2003 and telephone message left on 25 April 2003 have similarly gone unanswered.
In view of the above protracted timescale I should be grateful to hear from you ..."
"I have asked for a report on the background to this and will let you have a full and substantive reply very soon."
"I apologise for being unable to respond to your correspondence. As we have explained the officer dealing with this case has been on sick leave ... We are at present drafting a response but I am afraid it will not be ready by close of play today."
"We refer to the above matter and to previous correspondence. We are very concerned that there is still no decision issued. Both ourselves and Glasgow City Council have been pushing for this matter to be resolved. When our Mr. Collins' secretary spoke with you last week you indicated that the decision was being typed up but another week has gone by with no letter having been received. We are instructed to now raise an action for damages against yourselves for breach of our client's human rights. Our client is entitled to a fair hearing within a reasonable period of time. This matter has been outstanding for several years now. Our client has been denied access to significant funds which were held back from the sale of the property to cover the potential cost of the repair works. We will refrain from lodging the writ until Friday of this week on the basis that there seems no reason why a decision cannot be received by then."
[151] As noted above the determination (production 7/67) was dated 4 July 2003.
[152] The determination, which is 5 pages long, is signed by Sheenagh Adams.
[153] In overview the determination contains sections relating to:-
[154] The conclusions relate to:-
[155] In paragraph 15 of the determination it is stated inter alia that:-
"The Scottish Ministers are not persuaded that whether or not the property should be demolished is directly relevant to their consideration of the issue of necessity of the works to preserve the listed building. In any event, the Scottish Ministers note that an application for listed building consent to demolish the remains of the fire-damaged building was refused by Glasgow City Council in May 1997. This decision was appealed and was dismissed by the Reporter ... in his letter dated 19 January 1998. ..."
[156] The actual determination (in para 25 of 7/67) is in the following terms:-
"Accordingly, for the reasons given above, it is the determination of the Scottish Minister under section 50(4) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 that your client's representations under section 50(4)(a) and 50(4)(c) of the 1997 Act are not justified. They hereby specify that the amount recoverable by Glasgow City Council for urgent works including structural stabilisation and waterproofing at 7 James Street, Glasgow is £53,056.88 as set out in the invoice from the Council dated 13 July 1998."
The Petitioner's Three Arguments
[157] Having outlined the circumstances, I now return to each of the Petitioner's three arguments.
Argument (1) for the Petitioner - Breach of Article 6(1)
[158] Argument (1) for the Petitioner relates to the alleged breach of Article 6(1) of the European Convention on Human Rights (the "ECHR").
[159] In my opinion, in the whole circumstances and for the reasons outlined below, argument (1) for the Petitioner is well founded.
[160] I am satisfied that there has been a breach of Article 6(1) in this particular case.
[161] My reasons are as follows.
[162] It might be helpful to summarise some of the authorities referred to.
Article 6(1) ECHR
[163] Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention") provides that:-
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
The Human Rights Act 1998
[164] Section 6(1) of the Human Rights Act 1998 provides that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
The Scotland Act 1998
[165] Section 57(2) of the Scotland Act 1998 provides that:-
"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."
[166] Section 103(1) of the Scotland Act 1998 also provides that:-
"Any decision of the Judicial Committee in proceedings under this Act shall be stated in open court and shall be binding in all legal proceedings (other than proceedings before the Committee)."
A and Others v Denmark
[167] A and Others v Denmark (1996) 22 EHRR 458 provides some general background.
[168] In that case the various applicants complained that the proceedings (instituted by the Danish Association of Haemophiliacs) violated Article 6(1) by reason of their inordinate duration. The proceedings as a whole took over seven years to conclude during which time some of the individuals concerned had died. Having reviewed the particular circumstances, it was held by six votes to three that there had been a violation of Article 6(1) of the Convention with respect to certain of the applicants.
[169] I was referred inter alia to page 487, paragraph 81.
[170] In general terms A and Others supports the view that what is at stake for the individual may affect the analysis.
Philis v Greece (No 2)
[171] Philis v Greece (No 2) (1998) 25 EHRR 417 also provides general background. I was referred in particular to paragraphs 40 and 46 of the judgement.
[172] In relation to the length of the criminal proceedings, it was said, inter alia, that:-
"40. The Court notes that the case was not particularly complex and that the applicant was not in any way responsible for the length of the proceedings. It also observes that Mr Philis was convicted at first instance and agrees with the Commission that there was a period of inactivity of approximately three years between the date of his appeal and the date on which his conviction was quashed. Such a period may be considered reasonable only in exceptional circumstances which the Respondent State must account for. ..."
[173] In relation to the length of the disciplinary proceedings it was said, inter alia, that:-
"46. The Court agrees with the Commission that the period to be taken into consideration began at the latest on 14 November 1983, when the disciplinary charges against the applicant were drawn. Like the Commission, the Court acquired jurisdiction ratione temporis when Greece's recognition of the right of individual petition took effect on 20 November 1985. However, in order to assess the reasonableness of the length of time which elapsed after that date, regard must be had to the state of the case at the time. ...
The Court must accordingly rule on the reasonableness of disciplinary proceedings which lasted more than nine years, seven of which were within the jurisdiction ratione temporis of the Convention institutions."
Robins v United Kingdom
[174] In Robins v United Kingdom
(1998) 26 EHRR 527 the European Court of Human Rights unanimously held that
there had been a violation of Article 6(1) of the Convention. I was referred
in particular to paragraphs 29 and 33 to 35.
[175] It was stated, inter alia, that:-
"33. The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case, having regard in particular to the complexity of the case and the conduct of the parties to the dispute and the relevant authorities. ...
34. The Court notes that it took over four years to resolve what may be regarded as a relatively straightforward dispute over costs. It is undoubtedly true that State authorities cannot be held responsible for the totality of the delays in the case. None the less, as the Department of Social Security itself explained, 10 months were wasted between February and November 1992 because of that Department's mistaken belief that the applicants had separated. Moreover, there was a period lasting approximately 16 months, between the application for the extension of time for the filing of notice of appeal in January 1993 and the Registrar's direction in April 1994, when it would seem that the court authorities were totally inactive. Basing itself on these two periods, in the context of the overall length of the proceedings, the Court concludes that there was an unreasonable delay in dealing with the applicants' case.
35 There has accordingly been a violation of Article 6(1) in that the applicants' "civil rights and obligations" were not determined within "a reasonable time"."
Mavronichis v Cyprus
[176] In Mavronichis v Cyprus (2001) 31 EHRR 54 it was said, inter
alia, that:-
"37. ... It must also be observed that when assessing the reasonableness of the length of the proceedings in light of the Court's established case-law, regard must be had to the fact that the period in respect of which it has jurisdiction ratione temporis began to run from 1 January 1989, when the declaration whereby Cyprus recognised the right of individual petition for the purposes of Article 25 of the Convention took effect. The Court, like the Commission, notes nevertheless that it must take account of the state of the case on that date in making its determination.
38. Against that background, the Court, with reference to its settled case-law on the matter, will assess the reasonableness of the length of the impugned proceedings in light of the particular circumstances of the case having regard to its complexity, to the conduct of the applicant and to that of the authorities including the domestic courts which heard the case at first instance and on appeal..
39. The Court considers that the applicant's case essentially raised issues of liability and quantum of damages in respect of which the domestic courts had the benefit of settled case-law. The length of the proceedings cannot therefore be explained in terms of the complexity of the issues involved. It notes in this regard that the Supreme Court was able to decide the case relatively quickly after it was set down for hearing on 15 March 1995. ..."
Porter v McGill
[177] Porter v McGill [2001] UKHL 67, [2002] 2 AC 357 provides very useful guidance.
[178] In particular Lord Hope of Craighead said (at paragraphs 108, 109 and 110) inter alia:-
"108. I would also hold that the right in article 6(1) to a determination within a reasonable time is an independent right, and that it is to be distinguished from the article 6(1) right to a fair trial. As I have already indicated, that seems to me to follow from the wording of the first sentence of the article which creates a number of rights, which although closely related, can and should be considered separately. This means that it is no answer to a complaint that one of these rights was breached that the other rights were not. To take a simple example, the fact that the hearing took place in public does not deprive the applicant of his right to a hearing before an independent and impartial tribunal established by law.
109. I would respectfully follow Lord Steyn's observations in Darmalingum v The State [2000] 1 WLR 2303 about the effect of section 10(1) of the Constitution of Mauritius when he said that the reasonable time requirement is a separate guarantee. It is not to be seen simply as part of the overriding right to a fair trial, nor does it require the person concerned to show that he has been prejudiced by the delay. ...
110. In Kőnig v Federal Republic of Germany (1978) 2 EHHR 170, 197, para. 99 the European Court gave the following guidance as to the test to be applied in civil proceedings on the question of delay:
"The reasonableness of the duration of the proceedings covered by article 6(1) of the Convention must be assessed in each case according to its circumstances. When inquiring into the reasonableness of the duration of criminal proceedings, the court has regard, inter alia, to the complexity of the case, to the applicant's conduct and to the manner in which the matter was dealt with by the administrative and judicial authorities. The court, like those appearing before it, considers that the same criteria must serve in the present case as the basis for its examination of the question whether the duration of the proceedings before the administrative courts exceeded the reasonable time stipulated by article 6(1)."
[179] Lord Hope of Craighead then proceeded to consider the facts in Porter v McGill and reached the following conclusion (in paragraph 114):
"Applying the test described in Kőnig v Federal Republic of Germany (1978) 2 EHHR 170, 197, para. 99 which directs attention to the complexity of the case, the applicant's conduct and the manner in the which the matter was dealt with by the authorities, and leaving aside the question whether the Respondents have shown that they were prejudiced, I would hold that the proceedings did not exceed the reasonable time requirement which article 6(1) lays down."
Dyer v Watson
[180] Dyer v Watson 2002 SC (PC) 89 also provides very useful guidance.
[181] In particular, Lord Bingham of Cornhill said (at page 108 - 109, paragraphs 52 to 55) inter alia:-
"[52] In any case in which it is said that the reasonable time requirement (to which I will henceforward confine myself) has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. But if the period which has elapsed is one which, on its face and without more, gives ground for real concern, two consequences follow. First, it is necessary for the court to look into the detailed facts and circumstances of the particular case. The Strasbourg case law shows very clearly that the outcome is closely dependent on the facts of each case. Secondly, it is necessary for the contracting state to explain and justify any lapse of time which appears to be excessive.
[53] The court has identified three areas as calling for particular inquiry. The first of these is the complexity of the case. It is recognised, realistically enough, that the more complex a case, the greater the number of witnesses, the heavier the burden of documentation, the longer the time which must necessarily be taken to prepare it adequately for trial and for any appellate hearing. But with any case, however complex, there comes a time when the passage of time becomes excessive and unacceptable.
[54] The second matter to which the court has routinely paid regard is the conduct of the defendant. In almost any fair and developed legal system it is possible for a recalcitrant defendant to cause delay by making spurious applications and challenges, changing legal advisers, absenting himself, exploiting procedural technicalities, and so on. A defendant cannot properly complain of delay of which he is the author. But procedural time-wasting on his part does not entitle the prosecuting authorities themselves to waste time unnecessarily and excessively.
[55] The third matter routinely and carefully considered by the court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic under-funding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus it is not objectionable for a prosecutor to deal with cases according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case. Courts are entitled to draw up their lists of cases for trial some time in advance. It may be necessary to await the availability of a judge possessing a special expertise, or the availability of a courthouse with special facilities or security. Plans may be disrupted by unexpected illness. The pressure on a court may be increased by a sudden and unforeseen surge of business. There is no general obligation on a prosecutor, such as that imposed on a prosecutor seeking to extend a custody time limit under sec 22(3)(b) of the Prosecution of Offences Act 1985, to show that he has acted 'with all due diligence and expedition'. But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement, and the authorities make clear that while, for purposes of the reasonable time requirement, time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter."
[183] In Dyer v Watson Lord Hope of Craighead deals with the structure of the Convention right (at paragraphs 72 to 75), prejudice (at paragraphs 78 and 79), the threshold (at paragraphs 80 to 85) and retrospectivity (at paragraphs 113 and 114).
[184] In particular, in relation to "the structure of the Convention right" Lord Hope of Craighead stated inter alia-
"[74] Although there is no room for any implied restriction on the right guaranteed by art 6(1) to a hearing within a reasonable time, the terms in which it is expressed are not absolute or inflexible. As Lord Bingham of Cornhill has shown in his review of the Strasbourg case law, the Strasbourg court has never, when applying the reasonable time guarantee to the facts of particular cases, attempted to lay down minimum periods. ... It is not possible to identify from its judgments a tariff by reference to which decisions may be taken as to whether a given period of delay is or is not compatible with the Convention right. Nor does the Convention itself encourage this approach, as the art 6(1) right is qualified by the word 'reasonable'. The use of this word indicates that each case must be judged according to its own facts and circumstances: ...
[75] What the court has consistently sought to do instead is to provide general guidance, by laying down the factors with reference to which the reasonableness of the time is to be judged and by requiring the state to provide explanations with reference to these factors in cases where the period of the delay is inordinate ..."
[185] In relation to "prejudice" Lord Hope of Craighead said:-
"[78] Prejudice has not been identified by the court as a specific factor to which regard must be had when considering whether the period of time was reasonable. But this does not mean that the question of prejudice has been ignored by the guarantees in art 6(1). On the contrary, the risk of prejudice if the guarantees are breached lies at the very heart of the article. The reason why the guarantee of a hearing within a reasonable time appears in art 6(1) is because prejudice is presumed to arise if the guarantee is violated. ...
[79] Where significant prejudice due to a period of delay can be demonstrated, it can be taken into account when making the assessment: ... But it is not necessary for a person charged who claims that his art 6(1) Convention right has been violated to show that he has suffered, or will suffer, any actual prejudice. The mere fact of inordinate or excessive delay is sufficient to raise a presumption in his favour that he will be prejudiced. The burden of coming forward with explanations for inordinate delay is on the prosecuting authorities ..."
[186] In relation to "the threshold" Lord Hope of Craighead said:-
"[80] Although the Strasbourg court does not lay down any minimum periods of delay, it is possible to find guidance in its decisions to support the proposition that the concept of reasonableness implies that a relatively high threshold must be crossed before it can be said in any particular case that a period of delay is unreasonable. ...
[82] It is to be inferred from the decisions in Mansur and Löffler that the question whether the legal systems of the contracting states are organised in a way that is compatible with the art 6(1) Convention right must be approached by applying international standards to the reasonable time guarantee. This points to a relatively high threshold in comparison with those which we are accustomed to applying in criminal proceedings in our domestic law. ...
[85] The protection afforded by the art 6(1) right may be regarded as demanding a standard of performance by the prosecutor which is more exacting than that set by the common law, as it does not require the person charged to demonstrate prejudice. This feature of the Convention right provides a further indication that a relatively high threshold should be set in comparison with that indicated by the common law before the onus passes to the prosecutor to come forward with reasons for the delay. I agree with Lord Bingham that this will be so only if the period which has elapsed is one which, on its face and without more, gives grounds for real concern that the Convention right has been violated."
[187] I was also referred to Lord Roger of Earlsferry in Dyer v Watson (at pages 130 to134, paragraphs 146 to 154).
[188] In particular Lord Roger of Earlsferry states (in paragraph 150) inter alia that:-
"At least since Eckle v Germany (No 1), para 80, it has been settled that 'The reasonableness of the length of the proceedings must be assessed in each instance according to the particular circumstances. In this exercise, the court has regard to, among other things, the complexity of the case, the conduct of the applicants and the conduct of the judicial authorities'. The three elements of complexity, the applicant's conduct and the conduct of the competent authorities appear consistently in the judgments of the Court. In civil cases the importance of what is at stake in the proceedings is a factor which is mentioned as affecting the degree of diligence to be required of the competent authorities. ..."
Porter v United Kingdom
[189] In Porter v United Kingdom (2003) 37 EHRR CD8 the Court said (at pages 14-15) inter alia:-
"The proceedings terminated in the House of Lords judgment delivered on December 13, 2001. The period to be considered is accordingly 7 years and 11 months, in respect of proceedings at four levels of jurisdiction.
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what is at stake for the applicant in the litigation ...
The complexity of the proceedings is apparent from the volume of documents and evidence of witnesses and the amounts of losses to be calculated. ...
Having regard to the particular circumstances of the case and taking the proceedings as a whole, the Court finds that there is no appearance of a violation of the reasonable time requirement in Art. 6(1) of the Convention."
[190] Against that background I turn to the present case.
The present case
[191] I have outlined the circumstances of the present case and the authorities in some detail above.
[192] I agree with the Petitioner that her "appeal" under section 50 engages the protection afforded by Article 6(1).
[193] The relevant start date (for assessing whether there has been any unreasonable delay) is 16 July 1998 or shortly thereafter. That was the date on which the Petitioner's agents wrote to the respondents intimating "an Appeal" (production 7/4). The relevant end date is 4 July 2003. That was the date on which the determination was issued by Sheenagh Adams (production 7/69).
[194] The relevant period is just under five years or thereby.
[195] I agree that the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. However, in my opinion, that threshold has been crossed in this particular case.
[196] In my view, the delay in this case does give grounds for real concern.
[197] I require to look to the detailed facts and circumstances of this particular case and I have done so.
[198] I have taken into account the whole circumstances, including in particular the competing contentions of parties in relation to:-
(1) the complexity of the case;
(2) the conduct of the parties;
(3) the importance of the case to the parties.
[199] In relation to the complexity of the case, I would outline my views as follows:-
(1) I agree with the Petitioner that that there is nothing unduly complex about the facts of the case which Historic Scotland required to consider. Unlike the Porter case, the amount of documentation was fairly limited.
(2) I also agree with the Petitioner that procedurally the appeal is at a simple level in the sense that it did not involve intricate procedure or various tiers of jurisdiction, as was the case in Porter.
(3) It may well be the case that an appeal under section 50 is intended to be expeditious and of a summary nature (as the Petitioner suggests) but that in itself is not conclusive. The fact that section 50 of the 1997 Act provides that an appeal has to be brought within 28 days is simply one other factor to be borne in mind.
(4) It is correct to say that the determination runs to a total of only five pages but the length of decision itself is not decisive. However, the circumstances leading up to the decision (which Sheenagh Adams managed to produce within a commendably short period after becoming involved) tend to support the conclusion that a decision could and should have been produced at a very much earlier stage.
(5) I was not persuaded by the Petitioner's suggestion that useful comparison might also be made with the adjudication procedures under the Housing Grants, Construction and Regeneration Act 1996 (in terms of which adjudicators have 28 days, extendible to 42 days, to issue a decision in often complex building disputes). The Petitioner also referred to The Scheme for Construction Contracts (Scotland) Regulations 1998. I did not find those comparisons to be helpful for present purposes. However, they do not detract from the Petitioner's other submissions.
[200] In relation to the conduct of the parties, I have already set out (above) the background circumstances and the chronology of events in some considerable detail. Suffice it to say that in the whole circumstances, in my opinion, the Petitioner's submissions are well founded.
[201] The Petitioner provided information and pressed for progress on numerous occasions but Historic Scotland did little or nothing constructive for years.
[202] In relation to the importance of the case to the Petitioner, it appears that a sum equivalent to the amount in the Section 50 Notice has been retained by the purchaser of the Property. It would be fair to say that the lack of a determination left the Petitioner uncertain of her rights in relation to the retained sums for an extended period of time.
[203] I should add that I accept the four propositions which were advanced by Mr Wolffe at the outset of his submission.
[204] I have also taken into account everything that has been said on behalf of the Respondents.
[205] However the factors founded upon by the Respondent are not sufficient, in my view, to explain or justify the lapse of time in this case which was excessive.
[206] In my view, there has been a marked and unjustified lack of expedition.
[207] There has been inordinate delay.
[208] In the whole circumstances outlined above, I am satisfied that the delay in this particular case is such as to amount to a breach of Article 6(1).
[209] Failure to communicate compounded the breach.
[210] There is a high threshold but it has been crossed.
[211] I propose to sustain the first plea-in-law for the Petitioner by granting the declarator sought in paragraph 3(d) of the Petition, namely, that in delaying until 4 July 2003 the Respondents have acted in breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
[212] Before doing so, I will hear parties further as requested.
[213] I should also add a little more in relation to R v HM Advocate 2003 SC (PC) 21 and Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72, [2003] UKHL 68.
R v H M Advocate
[214] In R v H M Advocate 2003 SC (PC) 21 the appellant had been charged with various offences and had taken a plea in bar of trial in respect of charges 1 and 3 on the grounds of unreasonable delay. Ultimately on appeal to the Judicial Committee his appeal was allowed and the charges were dismissed. The Judicial Committee (which included Lord Hope of Craighead, Lord Clyde and Lord Roger of Earlsferry who formed the majority) held inter alia (Lord Steyn and Lord Walker of Gestingthorpe dissenting) that once it was established that a proposed or continuing act was incompatible with a person's rights under Article 6(1), the Lord Advocate was prohibited from doing that act by section 57(2) of the Scotland Act 1998 and there was no discretion as to the remedy which the court must apply, which was an order that he be stopped from doing the act (see pages 40D, 43H-45F and 72B-C). It was also held, (Lord Steyn and Lord Walker of Gestingthorpe dissenting) that in R's case the Lord Advocate's act in continuing to prosecute the appellant was incompatible with the appellant's right to a determination of those charges within a reasonable time, and it followed that it would not be possible to avoid that breach simply by arranging to bring the matter to trial without further delay, and the only course which the court could take was to bring proceedings to an end (see pages 40C-D, 43H-44B, 45C-F, 49C-D, 72A-C).
Attorney General's Reference (No. 2 of 2001)
[215] In Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72, [2003] UKHL 68 the majority view in the House of Lords (7 to 2) was that criminal proceedings may be stayed on the ground that there has been a violation of Article 6(1) only (a) if a fair hearing is no longer possible or (b) if it is for any compelling reason unfair to try the defendant. Lord Hope of Craighead and Lord Roger of Earlsferry were the minority of two. Their Lordships views can be outlined as follows.
[216] Lord Bingham of Cornhill (at page 92, paragraph 30) said:-
"... In each case the act is one that may not lawfully be done. I do not think that my opinion in this case can be reconciled with the decision of the majority in HM Advocate v R [2004] 1 AC 462. While, therefore, the House may not overrule that decision of the Privy Council, I should make clear my preference for the opinion there expressed by the dissenting minority, which I take to be consistent with my own opinion in the present case."
[217] Lord
Nicholls of Birkenhead (at
page 94, paragraph 42) said:-
"For these reasons I respectfully consider that HM Advocate v R [2004] 1 AC 462 was wrongly decided."
[218] Lord Steyn (at page 94, paragraph 43) said:-
" ... I have studied all the opinions in this matter with care. I cannot accept the analysis contained in the opinions of my noble and learned friends, Lord Hope of Craighead and Lord Rodger of Earlsferry. On the other hand, I agree with the reasons given in the opinions of my noble and learned friends, Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Millett. I would also make the order which Lord Bingham proposes."
[219] Lord Hoffman (at page 94 , paragraph 44) said:-
" ... I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill, with which I am in complete agreement."
[220] Lord Hope of Craighead (at page 112, paragraphs 107 to 109) said:-
"107. The law of Scotland is not directly under review in this case. Moreover, questions arose in HM Advocate v R [2004] 1 AC 462 about the interpretation of the Scotland Act 1998 and aspects of Scottish criminal practice which are not common to the two countries. I would have much preferred it if your Lordships had felt able to arrive at a decision in this English appeal which could be reconciled with that of the Judicial Committee in R's case. But it does not follow from the fact that this has not been possible that R should not be followed in Scotland.
108. A divergence of view between the two jurisdictions about the meaning of the reasonable time guarantee, as there is at present, is unfortunate but it may have to be accepted as inevitable. The last word as to its meaning must, of course, lie with Strasbourg. The doors of that court remain open to those who believe that, as a result of the decision in this case, they have not been provided in this jurisdiction with an effective domestic remedy.
109. I must respectfully dissent from the view of the majority that criminal proceedings may be stayed on the ground that there has been such a violation only (a) if a fair hearing is no longer possible or (b) if it is for any compelling reason unfair to try the defendant. ..."
[221] Lord Hobhouse of Woodborough (at page 117-118, paragraph 127) said:-
"The appellants fail on the first element in the main question. The construction of article 6(1) for which they contend and which my noble and learned friends, Lord Hope and Lord Rodger, support and HM Lord Advocate v R [2004] 1 AC 462 upheld is in my respectful opinion clearly wrong. Further the distinction it is sought to make between the law of Scotland and English law regarding the second element is in my respectful opinion clearly unsustainable as a matter of English law."
[222] Lord Millet (at page 120, paragraph 139) said:-
"It follows that it is not unlawful (in England) or ultra vires (in Scotland) to proceed to trial despite the unreasonable delay."
[223] Lord Scott of Foscote (at page 120, paragraph 140) said:-
"... I am in complete and respectful agreement with the opinions of my noble and learned friends, Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Millett, and would answer the two questions put by the Attorney General in the manner Lord Bingham has proposed."
[224] Lord Roger of Earlsferry (at page 133, paragraph 179) said:-
"Having set out my reasons for taking a different view, I acknowledge, of course, that the view of the majority of your Lordships now settles the question in the law of England and Wales. As is obvious, the reasoning behind that decision is inconsistent with the reasoning of the majority on the equivalent point in HM Advocate v R [2004] 1 AC 462. While that is unfortunate, it causes no problems for the courts in England and Wales. In Scotland the decision has no formal effect on the position in criminal cases but its impact will undoubtedly be felt there. If the point is reopened before the Scottish courts in the context of a devolution issue, the Privy Council will doubtless be called upon to determine it. At this stage I do not consider that it would be helpful to say more."
[225] As counsel recognised, R v H M Advocate 2003 SC (PC) 21 remains the law of Scotland.
[226] Section 103(1) of the Scotland Act 1998 provides that:-
"Any decision of the Judicial Committee in proceedings under this Act shall be stated in open court and shall be binding in all legal proceedings (other than proceedings before the Committee)."
[227] In the result, and as requested by the parties, I shall put the case out By Order for further procedure.
[228] I now turn to argument (2).
Argument (2) for the Petitioner - Failure to take into consideration relevant factors
[229] Argument (2) for the Petitioner relates to the alleged failure of the Scottish Ministers to take into consideration relevant factors.
[230] For the reasons outlined below, I am not satisfied that argument (2) is well-founded.
[231] I have already set out some of the statutory provisions above (under the heading "The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997").
[232] In the present case, the Petitioner founds upon, inter alia:-
[233] The Petitioner also submitted that the nature of section 49 notices is such that a broad view should be taken when considering whether the sum sought to be recovered is reasonable.
[234] In essence, for the reasons outlined by Mr Barne, the Petitioner submitted that the whole circumstances behind the issuing of the notices could and should be taken into consideration by the Respondents.
[235] I have taken into account everything that has been said by Mr Barne in connection with argument (2).
[236] However, in my opinion, the Petitioner's approach is too broad and goes beyond the provisions of section 50(4).
[237] I am not satisfied (questions of delay apart) that the Respondents erred in their approach such as to justify reduction of their determination.
[238] It might be helpful to say a little more about some of the cases cited.
R v Secretary of State for the Environment, ex parte Hampshire
County Council
[239] In R v Secretary of State
for the Environment, ex parte Hampshire County Council (1982) 44 P & CR
343 the applicant local authority served on the owner of a listed building a
notice under section 101(4) of the Town and Country Planning Act 1971 as
amended. The owner made representations to the Secretary of State under section 101(7)
of the 1971 Act. The Secretary of State held, inter alia, that the
notice had failed to describe in sufficient detail the works that the local
authority proposed to execute and determined that, accordingly, the local
authority were not entitled to recover the costs from the owner. The local
authority appealed to the Queen's Bench Division. The appeal was dismissed.
[240] Donaldson LJ said (at pages 349 -351) inter alia that:-
"... the notice does not call on the owner to do any work, but subject to that, I think it is right that the purpose of giving seven days' notice is to enable the owner to discuss the matter with the local authority and perhaps to volunteer to do the works for himself. He might be able to do them more cheaply than the local authority if, for example, he was a builder. It also enables him to discuss what works are necessary and what alternative ways there are of achieving the admitted object of preserving the building. The seven days' notice is important, and it does serve the purpose of giving the owner an opportunity to make representations. ... I think also that the Secretary of State is right in saying that it is important that the notice shall give some detail of what works are contemplated. I say "some detail" because it must be borne in mind that this is an emergency procedure. ... This notice ... however, although it would have been all right if it had included the estimate that showed what works were going to be done, gives not a clue on its face as to what the authority had in mind. ... I would decide this case on the grounds that, in the circumstances of this case, the notice was inadequate and the Secretary of State was therefore justified in the conclusion that he reached."
[241] In my view, the dictum in the Hampshire County Council case is not authority for a general proposition to the effect that the Respondents in this case can and should exercise a general power to address the equities of the situation. If that is the effect of the Hampshire County Council case, then in my view it goes too far.
[242] I prefer the more focussed approach, suggested by Mr Wolffe, which is based on the provisions of section 50(4) and which is reflected to some extent in the Swansea case (below).
[243] In any event, the Hampshire case can be distinguished on its facts.
[244] The Petitioner in the present case was given greater detail.
Bolton Metropolitan Borough Council v Jolley
[245] In Bolton Metropolitan Borough Council v Jolley [1989] 1 PLR 97, in relation to section 101(6) of the Town and Country Planning Act 1971, Parker LJ said (at page 100H-101A) inter alia:-
"It appears to me that a notice under subsection (6) in all probability should contain sufficient information to enable representations to be made to the Secretary of State upon which he would be able to form some conclusion as to its validity or otherwise. The bill, which was presented, would not enable, as I see it, anybody to say that there has been, for example, windows boarded up which were unnecessary, or that some of the repairs to the brickwork and gutters were unnecessary, because there was no detail whatsoever given of the works that had been carried out. I say "in all probability" because it is unnecessary to reach a final conclusion on that matter. I content myself in saying that the notice was, in my judgment, bad in that it demanded recovery of the sum with no mention of the fact that it was only recoverable subject to the provisions of the following subsections."
[246] With reference to the account of March 7 1985 which had been submitted to the defendant in the Jolley case, Bingham LJ stated (at page 101 C-E) inter alia:-
"It simply contains a demand for payment."
[247] These observations are, as Mr Wolffe suggested, obiter.
[248] The Jolley case, in my view, can also be distinguished on its facts.
[249] The Petitioner in the present case was provided with greater detail and the question for the Scottish Ministers was the one focused in section 50(4) of the 1997 Act.
R v Secretary of State for Wales ex parte City and County of Swansea
[250] In R v Secretary of State for Wales ex parte City and County of Swansea (1999) 78 P & CR 317 the application raised a short point as to the proper interpretation of section 55 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the 1990 Act").
[251] Section 54 of the 1990 Act provides inter alia that:-
"(1) A local authority may execute any works which appear to them to be urgently necessary for the preservation of a listed building in their area."
[252] Section 55 of the 1990 Act provides inter alia that:-
"(4) The owner may within 28 days of the service of the notice represent to the Secretary of State - (a) that some or all of the works were unnecessary for the preservation of the building; ..."
[253] Mr Katkowski, for the Respondent in the Swansea case, argued that there was jurisdiction only to allow the recovery of costs of urgently necessary works.
[254] It was held that section 55(4)(a) of the 1990 Act does not prevent the recovery of expenses incurred pursuant to a section 54 notice even if they are for works which were necessary rather than urgently necessary, provided that the local planning authority reasonably thought that the works appeared to be urgently necessary.
[255] Dyson J said inter alia (at page 319-320):-
"Nor am I impressed by Mr Katkowski's point (for the Respondent) that, if the applicant's interpretation is correct, the authority is the sole arbiter on the issue of urgency, subject always to Wednesbury. I find nothing surprising in this. It seems to me that it is entirely understandable, that Parliament should have intended that there should not be a review on the facts of the authority's view on the question of urgency, but that there should be such a review of its view that the works were necessary for the preservation of the building at all. If the works are necessary, it is reasonable that, subject to the other defences set out in section 55(4)(b) to (d), the owner should be liable to reimburse the authority with the costs, provided that the authority was acting reasonably in deciding that the works were urgently necessary."
[256] I prefer the approach of Dyson J in R v Secretary of State for Wales ex parte City and County of Swansea (1999) 78 P & CR 317 to the approach suggested by the Hampshire case.
[257] I do so essentially for the reasons outlined by Mr Wolffe (above)
[258] The Swansea case does not provide the Respondents with a complete answer in the present case. It does, however, illustrate the importance of focussing on the particular statutory provisions concerned and the need to bear in mind that different bodies can have different roles and responsibilities (such as the Council and the Respondents in this case). Their actions may also be challenged in different circumstances and in different ways.
[259] In the result, I was not satisfied that the failures founded upon by the present Petitioner had any material bearing on the decision brought under review in the present petition.
[260] In particular, I was not satisfied that there was any error of law rendering the Respondents' determination liable to reduction.
[261] The question for the Respondents was not whether the works were "urgently necessary for the preservation" of the property (in terms of section 49).
[262] The question was whether and to what extent the representations by the Petitioner were "justified" (in terms of section 50(4)).
[263] Argument (2) for the Petitioner fails for the reasons outlined by Mr Wolffe.
Argument (3) for the Petitioner - Irrationality
[264] Argument (3) for the Petitioner relates to alleged irrationality.
[265] As outlined above, Mr Barne submitted that the works identified in the notice dated 4 April 1997 (Production 6/3) and in the Section 49 Notice (Production 6/5) were different and that in failing to have regard to the differences between the notices Historic Scotland was acting unreasonably.
[266] This argument overlaps with the previous argument and I have taken it into account above in connection with argument (2).
[267] It does not amount, in my view, to a separate argument which would in itself amount to irrationality such as to justify reduction of the decision which is under review.
[268] I agree with the Respondents on this aspect of the case also.
[269] Argument (3) for the Petitioner fails.
Conclusions
[270] In the result, I propose to sustain the first plea-in-law for the Petitioner by granting the declarator sought in paragraph 3(d) of the Petition, namely, that in delaying until 4 July 2003 the Respondents have acted in breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
[271] Before doing so, and as requested by counsel for both parties, I shall put the case out By Order in relation to further procedure.
[272] I shall also reserve meantime the question of expenses.