Scottish Court of Session Decisions

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.

The Parties

The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997

"(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."

"(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

"(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."

The Determination in the Present Case

The Pleadings

The Orders Sought

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.

The Grounds of Challenge

(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.

The Background - as described by the Petitioner

"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 St John's Road, Glasgow. The Petitioner at that time lived at 15 St Johns 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 St John's 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.

The Pleas-in-law for the Petitioner

"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

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).

The submissions for the Petitioner

(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.

(1) Breach of Article 6(1);

(2) Failure to take into consideration relevant factors; and

(3) Irrationality.

Argument (1) for the Petitioner - Breach of Article 6(1)

(1) the complexity of the case;

(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.

(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).

(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.

(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.

Argument (2) for the Petitioner - Failure to take into consideration relevant factors

(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.

(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.

Argument (3) for the Petitioner - Irrationality

(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.

"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."

Response to Argument (1)

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.

Response to argument (3)

Discussion

"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 ..."

An outline chronology of events

• In July 1998 the Petitioner served a listed building purchase notice under section 28 of the 1997 Act on the Council.
• The Council served a counter-notice under section 29 of that Act on the Petitioner.
• By letter of 16 July 1998 Mr Collins of Messrs Collins & Co intimated an appeal on behalf of the Petitioner against the section 50 notice on two grounds: (1) that the works carried out were unnecessary; and (2) that the amount claimed was unreasonable and recovery of the costs would cause hardship. This letter is Production 7/4.
• On 2 September 1998 Historic Scotland requested further information from the Petitioner's solicitors (production 7/6).
• On 16 September 1998 the Petitioner's solicitor replied without giving much substantive information (production 7/7).
• On 14 October 1998 Historic Scotland sent correspondence from the Petitioner's solicitors to the Council for comment (production 7/9).
• On 3 November 1998 the Council wrote commenting on the Petitioner's representations (production 7/11).
• On 2 December 1998 a copy of that letter was sent by Historic Scotland to the Petitioner's solicitor for comment (production 7/12). In particular it was stated:-

"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."

• On 11 January 1999 the Petitioner's solicitor wrote to Historic Scotland referring to a letter of 7 December and seeking a copy of a report (production 7/13).
• Historic Scotland, it appears, had not received a letter of 7 December.
• On 19 January 1999 a copy of that letter was faxed to Historic Scotland (production 7/14).
• The report requested was a document referred to in the Council's comments.
• A copy of the report was sent to the Petitioner's solicitor.
• On 8 February 1999 Historic Scotland intimated to the Petitioner's solicitor that the Secretary of State was not minded to confirm the listed building purchase notice (production 7/16).
• On 22 February 1999 (production 7/18) the Petitioner's solicitor wrote to Historic Scotland: (a) requesting a hearing in respect of the listed building purchase notice before a person appointed by the Secretary of State; and (b) enclosing documentation in support of the section 50 appeal (6/9(b) and 6/9(c)).
• The documents in Production 6/9(a) appear to have been sent in response to the letter from Historic Scotland which is dated 2 March 1999 (production 7/19).
• On 18 May 1999 the Scottish Office Inquiry Reporters wrote to the Petitioner's solicitor in connection with the public inquiry to be held in relation to the listed building purchase notice.
• On 21 May 1999 a date in July for the inquiry was offered to the parties.
• The Petitioner's solicitor advised that this date was not suitable for his client and a date in November 1999 was fixed for the inquiry. This related to the purchase notice issue (7/24).
• On 6 July 1999 Mr Collins wrote to Historic Scotland (production 6/15(1) and 7/26) stating inter alia:-

"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."

• Historic Scotland replied by letter dated 10 July 1999 (Production 7/27) as follows:-

"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."

• The Respondents received no response to this letter from the Petitioner's solicitor, until about 12 October 1999.
• On 12 October 1999 (production 6/15(2) and 7/28) Mr Collins wrote to Historic Scotland stating inter alia:-

"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."

• The Petitioner's solicitor also intimated on 12 October 1999 that the Property had been sold to a third party and that inter alia the Petitioner would not be proceeding with the listed building purchase notice appeal (Production 7/29).
• On 20 October 1999 the Council wrote to the Respondents intimating that both the purchaser and seller wished the appeal against recovery of expenses to proceed (production 7/31).
• On 3 December 1999 the Petitioner's solicitor wrote seeking confirmation of the position (production 7/33). In particular, he stated inter alia:-

"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."

• On 4 February 2000 (production 6/15(3)) Mr Collins wrote by first class post. He stated inter alia:-

"... 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."

• Mr Baxter, an official within Historic Scotland, has recorded in a file note that he spoke to the Petitioner's solicitor about the submission of financial information (production 7/34) in order to determine the appeal under section 50(4) of the 1997 Act. That note bears to have been dated 14 March 2000.
• Historic Scotland appears to have proceeded on the basis that as "no such information was provided by the Petitioner or her agents" (as averred in Answer 11).
• Production 7/35 relates to an application for listed building consent from the new owners of the Property, namely, Bond Homes (Scotland) Ltd.
• On 21 June 2000 (production 6/15(4)) Mr Collins wrote inter alia:-

"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."

• On 8 August 2000 the Petitioner's solicitor wrote complaining about the delay in determining the appeal (production 7/37). In particular he stated:-

"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."

• On 5 September 2000 Historic Scotland replied, stating inter alia that the Petitioner had not expanded on the statements that the amount claimed by the planning authority was unreasonable and that recovery would cause hardship to the Petitioner and requesting detailed information on these matters (production 7/38). It was said, inter alia, that:-

"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."

• By letter of 12 September 2000 the Petitioner's solicitor intimated, for the first time, that the Petitioner was not pursuing the issue of hardship. In particular, Mr Collins wrote (production 6/15(5) and 7/39) inter alia:-

"We refer to the above matter and to your letter of 5^th 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."

• On 2 October 2000 the Petitioner's solicitor (production 7/40) stated inter alia:-

"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."

• On 28 November 2000 Historic Scotland wrote to the Petitioner's solicitor in the following terms (in production 7/41) inter alia:-

"... 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 ..."

• On 28 November 2000 Historic Scotland sent a copy of the Petitioner's "appeal document" to the Council for comment (production 7/42). As noted above, Productions 6/9(b) and 6/9(c) had been sent by Collins and Co to Historic Scotland on 22 February 1999 (Production 7/18).
• Reminder letters were also sent by Historic Scotland to the Council on 15 January 2001 (production 7/43) and 5 March 2001 (production 7/46).
• On 24 January 2001 the Petitioner's solicitor produced further documents in support of the appeal (production 7/45). Those documents are in Production 6/9 (d).
• In August 2001 the Council was given further reminders by telephone.
• On 15 August 2001 (6/15(6) and 7/47) Mr Collins wrote inter alia:-

"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."

• Collins & Co also sent a follow-up letter on 20 August 2001 (7/49).
• On 5 September 2001 (production 6/15(7) and 7/50) Mr Collins wrote inter alia:-

"We refer to the above and to your letter of 16 August and our letter of 20^th 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."

• On 10 September 2001 Historic Scotland advised the Council that unless the Council's written statement was received by 21 September 2001 the matter would be determined (production 7/51).
• On 20 September 2001 (production 7/52) the Council submitted a statement of case together with productions (productions 7/70 (a) to (k) and 7/73 (a) to (g)). (Production 7/70 had previously been numbered 7/68 but it was amended to 7/70 and the subsequent production numbers were corrected accordingly.)
• On 14 August 2002 (production 6/15(8)) Mr Collins wrote inter alia:-

"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."

• On 11 November 2002 (production 6/15(9)) Mr Collins wrote inter alia:-

"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."

• In or about November 2002 the Petitioner's solicitor sent further written submissions in support of the appeal to the Council (but not to Historic Scotland). The submission was called "Report Booklet 3" (production 7/71) which includes 40 pages of productions (production 7/72). Those productions include copy legislation, copy case law, some correspondence and various photographs.
• On 20 January 2003 the Council wrote to Historic Scotland stating inter alia that it did not intend to respond to this further submission (production 7/53).
• On 20 January 2003 (production 7/54) Messrs Collins & Co also wrote to Historic Scotland, marked for the attention of Scott Baxter, inter alia, as follows:-

"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."

• On 30 January 2003 (production 6/15(10) and 7/55) Mr Collins wrote to Historic Scotland inter alia:-

"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."

• On 12 February 2003 (production 7/57) Mr Collins wrote to Historic Scotland inter alia:-

"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."

• Mr Collins wrote again to Scott Baxter at Historic Scotland on 14 February 2003 (production 7/59).
• On 11 April 2003 Mr Collins wrote to Rodger Green at Historic Scotland (production 7/60) and stated inter alia:-

"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."

• On 6 May 2003 Mr Collins wrote to Historic Scotland (production 7/61) inter alia:-

"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 ..."

• On 9 May 2003 (production 7/62) the Assistant Chief Solicitor of Glasgow City Council wrote to Historic Scotland stating inter alia:-

"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 ..."

• On 12 May 2003 Sheenagh Adams, Director of Heritage Policy, appears to have written a file note (on production 7/62) to the effect of "what is this all about?"
• Sheenagh Adams also replied to the Council on 12 May 2003 (production 7/63) saying:-

"I have asked for a report on the background to this and will let you have a full and substantive reply very soon."

• On 19 June 2003, Richard Emerson, Chief Inspector of Historic Buildings at Historic Scotland, wrote to Francis Collins (production 7/65) stating inter alia:-

"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."

• On 1 July 2003 (production 6/15(11) and 7/66) Mr Collins wrote, for the urgent attention of Richard Emerson, stating inter alia:-

"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."

• the background (paras 2 to 4),
• the representations on behalf of Mrs Bibi (paras 5 to 8),
• the response from Glasgow City Council (paras 9 to 11) and
• the issues for determination (paras 12 to 14).

• the necessity of the work (paras 15 to 19),
• the reasonableness of the amount (paras 20 to 23), and
• other issues (para 24).

"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. ..."

"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

Argument (1) for the Petitioner - Breach of Article 6(1)

Article 6(1) ECHR

"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

The Scotland Act 1998

"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."

"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

Philis v Greece (No 2)

"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. ..."

"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."

"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"."

"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.

"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

"[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."

"[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. ...

"[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. ...

"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."

The present case

(1) the complexity of the case;

(2) the conduct of the parties;

(3) the importance of the case to the parties.

(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.

" ... 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."

" ... 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."

"It follows that it is not unlawful (in England) or ultra vires (in Scotland) to proceed to trial despite the unreasonable delay."

"... 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."

"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)."

Argument (2) for the Petitioner - Failure to take into consideration relevant factors

• The proliferation of notices, some of which were not withdrawn;
• The different identifications of the works variously identified in the various notices;
• The failure to give the statutory notice period of 7 days under the section 49 notice;
• The lack of specification of the works detailed in connection with the section 49 notice (6/5);
• The lack of specification of the works detailed in connection with the section 50(2) notice (6/7); and
• The invalidity of the section 49 notice (mentioned in paragraph 24 of the determination).

"... 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."

Bolton Metropolitan Borough Council v Jolley

"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."

"It simply contains a demand for payment."

R v Secretary of State for Wales ex parte City and County of Swansea

"(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."

"(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; ..."

"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."

Argument (3) for the Petitioner - Irrationality

Conclusions