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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 82
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P119/07
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OPINION OF LORD MATTHEWS
in the Petition of
MRS PATRICIA
ANDERSON
Petitioner;
for
Judicial Review of
the omissions of Shetland Islands Council and Scottish Water in failing to
implement and discharge their duties in respect of drainage, sewerage and
roads
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Petitioner: Anderson; McClure Naismith
First Respondents: Gale QC; Ledingham
Chalmers LLP
Second Respondents: McBrearty; HBM
Sayers
Interested Party: Hughes; Tods Murray
30 May 2008
[1] This
is a petition for judicial review of what are said to be certain omissions of
Shetland Islands Council and Scottish Water in failing to implement and
discharge certain duties in respect of drainage, sewerage and roads.
[2] The
case called before me on Tuesday
20 November 2007 and subsequent dates when the petitioner was
represented by Mr Anderson, the first respondents by Mr Gale, Q.C.,
the second respondents by Mr McBrearty and the interested party, Nicolson Bros,
by Mrs Hughes. I heard further
argument involving only the petitioner and the second respondents on 13 February 2008.
[3] In limine Mr Anderson told me that
he was the son of the petitioner, but he was appearing on her behalf as
counsel. This was a matter which had
been ventilated before Lord Mackay of Drumadoon.
[4] He
explained to me that the property where the petitioner lived had been built at
roughly sea level and after that some twenty one houses had been built on the
hill above it. Various adjustments had
been made to the local road serving a nearby bridge. Nicolson Bros were the local landowners who
had disponed of the land on which the houses were built. A large volume of surface water was now
coming down from the hill as a result of the construction of the houses and was
going onto the petitioner's property.
[5] He
submitted that the facts had been established in previous proceedings in the Sheriff
Court at Lerwick.
It was observed that excessive surface water was invading a nearby field
outside the petitioner's property and had the potential to threaten that
property. A Small Claims action was
raised against Shetland Islands Council and Nicolson Bros, but not Scottish
Water. The Sheriff had carried out a
locus inspection and had issued a judgment finding Shetland Islands Council to
be at fault at common law and, in fact, that there was an excess of surface
water which could have been avoided by proper drainage.
[6] Mr Anderson
submitted that it might have been thought that the parties would have applied
their minds to their responsibilities and adopted remedial measures but they
had chosen not to.
[7] In
December 2006 a number of cracks appeared in the petitioner's house and
investigations disclosed that they were caused by subsidence, which in turn was
probably caused by damage from surface water.
In January 2007 this petition for judicial review was presented.
[8] At
the hearing on 20 November 2007
I was told that the two respondents and the interested party had each produced
a Minute of Amendment seeking to raise the issue of title and interest to
sue. The motions to allow the Record to
be amended in terms thereof were to be vigorously opposed.
[9] The
petitioner also had a preliminary matter.
[10] Mr Gale moved me to open up and amend the Record in terms
of his Minute of Amendment, No.31 of process.
This sought to add a preliminary plea that there was no title and
interest to sue in the petition and to renumber the remaining
pleas-in-law.
[11] I was told that a first hearing was held on 23 February 2007 when only the first and
second respondents appeared. Both he and
Mr McBrearty, who then appeared as junior to Mr Di Rollo, Q.C,
expressed concerns about the potential conflict of interest which Mr Anderson
might have. It was also clear that,
although Nicolson Bros had been identified as potential interested parties, the
petition had not been intimated to them.
[12] The case was continued to a first hearing to be held on 10 and
11 May. At that hearing both the
first and second respondents were represented by counsel as were the interested
party. Mr Anderson appeared not as
counsel but as a lay representative for his mother. An issue was taken as to the competency of
this and Lord Mackay of Drumadoon heard argument on this issue on
10 May. He considered it overnight
and on 11 May he indicated that he would not allow Mr Anderson to
appear as a lay representative. He
formed the view that that was incompetent and issued an Opinion on 26 June 2007. It is now reported
at 2008 S.C.L.R 59.
[13] In the result the case was set down for a By Order hearing on
20 June, and the hearing which called before me was assigned then.
[14] Meantime the petitioner had instructed solicitors who had then
instructed Mr Anderson as counsel.
[15] At the end of the first hearing, which had proceeded before
Lord Menzies, a suggestion was made that there should be notes of
argument. The petitioner duly produced a
note for the hearing of 10 and 11 May which dealt with the question of whether
the petitioner had title and interest to sue.
[16] The first respondent also produced a note of argument.
[17] In paragraph 1 thereof the question of the petitioner's
title was raised. It was said that the
averments were inconsistent with certain averments in the Small Claims actions.
[18] Nicolson Bros also produced a note of argument which raised the
same questions.
[19] The second respondent did not raise the matter in terms.
[20] The issue of title and interest was thus raised before the
hearing in May.
[21] In June, at the By Order hearing, Lord Mackay requested parties
to provide further notes of argument and the first respondents had produced a
supplementary note, not departing from their previous one. This again raised the issue of title to sue. The petitioner produced a further note, running
to some thirty six pages, and on page 1 the issue of title and interest
was addressed.
[22] Thereafter, the petitioner lodged a number of notes in response
to the various notes of argument by the respondents and the interested
party.
[23] In the note of response to that for the interested party at
page 2, paragraph 1, there is a reference to the petitioner's
title.
[24] In the note of response to the argument for the first
respondents, paragraph 1 dealt with the question of title.
[25] There was also a supplementary note of argument for the
petitioner, which dealt exclusively with the question of title and interest.
[26] The position therefore was that, as from the very first hearing
of the petition in February, issues were raised about the petitioner's
title. These issues were identified in
the various notes of argument and responses thereto.
[27] Mr Gale said that it was subsequently recognised by the
parties that there were no specific pleas-in-law directed to the question of
title and interest, although that had been a recurring issue.
[28] The aim of the Minute of Amendment was simply to regularise the
position.
[29] There could be no suggestion that this was an issue of which
the petitioner was unaware. Indeed she
had sought to address the matter.
[30] I was told that there was no plea-in-law because at the initial
stage the inconsistencies which had given rise to the matter were not wholly
appreciated. The answers were drafted as
a matter of urgency.
[31] There was no prejudice to the petitioner.
[32] Mr McBrearty adopted what was said by Mr Gale in
relation to his own motion to have the Record opened up and amended in terms of
No.32 of process.
[33] It was unfortunate that a plea-in-law had not been included in
the answer but it was appreciated by all the parties that the question of title
and interest was a real issue. The
omission was no more than a technicality and there was no prejudice to the
petitioner.
[34] Even if it had come as a surprise the petitioner should surely
be in a position to deal with it. On the
other hand if the motion were refused then the petition would proceed without
the petitioner's title and interest having been properly established.
[35] Mrs Hughes, for the interested party, made a similar
motion. She also sought to lodge two
further inventories of productions relating to certain planning applications.
[36] She associated herself with the remarks of counsel for the
respondents.
[37] In reply, Mr Anderson said that the objective facts
referred to by his opponents were correct, but their interpretation was
not. He said that the respondents and
the interested parties were quite exercised by the fact that a Small Claim had
been raised by him in his capacity as executor for his late father. That had been made clear in the written
judgment produced by the Sheriff. Lord
Mackay of Drumadoon had sought responses to the various notes of argument, and
that was why they had been produced. He
had also said that a joint minute should be produced agreeing the matters which
were not in dispute and that had to be done two weeks prior to the hearing
before me, but that had not been done. A
draft joint minute had been sent to all of the respondents in June or July, but
no response had been received from them.
[38] It was apparent that they preferred not to address the facts of
the case and were simply wishing to deal with legal technicalities.
[39] The issue of locus standi,
or title and interest, was dealt with flexibly in judicial review cases and he
referred to O'Neil on Judicial Review
at para.6.10.
[40] Nonetheless, if it had to be dealt with it would be dealt with
on the basis of the underlying law which had not been changed by the Act of
Sederunt introducing judicial review proceedings.
[41] The Minutes of Amendment had only been intimated to him some
two business days before the hearing before me and would force him to go into
the general law of Scotland
on the matter of title and interest.
[42] The petitioner was 90 years of age, living alone in her
house and with every shower of rain was suffering further damage both to her
property and to her quality of life. The
court should refuse to look at this legal technicality which came too
late. The petitioner had a prima facie title and interest and the
matter should proceed.
[43] He was quite prepared to argue the point but if I were to allow
the Minutes of Amendment he sought leave to answer them and also invited me to
make a finding as to expenses against the respondents and the interested
parties.
[44] In all the circumstances it seemed to me that as the matter had
been referred to, to some extent at least, in the Record and in the notes of argument
there would be little prejudice in allowing the technical amendment to proceed
and I duly allowed the motions.
[45] I also allowed Mr Anderson to answer the Minutes of Amendment
and he was able to produce answers there and then.
[46] None of the other parties required to adjust.
[47] I indicated that I would reserve the matter of expenses until the
conclusion of the proceedings.
Background
[48] The background to this case,
and the orders sought, are set out in the Opinion of Lord Mackay of Drumadoon to
which I have already referred. Further details will no doubt emerge in due
course.
Title and interest to sue
[49] I heard argument on this
point as a discreet matter before turning to the merits of the petition.
Submissions for the petitioner
[50] Mr Anderson very
helpfully referred me to written arguments which he had prepared and to the
various authorities which were copied and attached thereto. He had obviously been prepared, as he had
said, to address the point.
[51] His preliminary submission was that the issue was res judicata. In this regard I expected him to make some reference
to the decision in the Small Claims action but, in fact, he referred to the
case of Docherty v Monifeith Burgh Council 1970 S.C.
200. It will be immediately obvious that
no question of res judicata was
raised at all, but Mr Anderson submitted that what he really meant was
that Docherty was binding on me and
disposed of the issue. In that case some
property developers had acquired a site within a burgh for the purposes of
constructing 52 houses. They called
upon the town council to lay the sewers necessary to connect the drains from
the houses, citing section 219 of the Burgh Police (Scotland)
1892. The town council replied that it
would better if the developers laid drains to an existing sewer. It was held that if the petitioner could show
that the decision was in breach of the statutory duty of the burgh, the
petitioner had a title to invoke the powers given by section 91 of the
Court of Session Act 1868. In Administrative Law in Scotland by Ashton
and Finch that case was interpreted as meaning that if a statutory duty is owed
to a class of persons, a member of that class may have title to sue if there
has been a breach of that statutory duty.
Docherty also had interest to
sue in that if the sewers were not provided by the burgh, they would have had
to be laid by him at his own expense.
[52] In Clyde and Edwards on Judicial Review at page 375,
paragraph 10.08, under reference to Docherty
the learned authors state the following:
"But the ambit
of the persons entitled to sue may extend beyond those who may be benefited by
the public service. It has been held
that performance of a statutory duty to lay main sewers to serve a private
housing development can be enforced by the developer of the housing site."
[53] The argument for the respondents had been that the petitioner
had no title to sue since the statutory duty was owed to the whole community
resident in the burgh and not to individuals.
[54] Mr Anderson's first principal argument was that the
petitioner had title and interest to sue as a member of the public in relation
to statutory duties owed to all members of the public. Under reference to D & J Nicol v Dundee
Harbout Trustees 1915 SC (HL) 7, he submitted that for a person to have
title he must be a party (in the widest sense) to some legal relation which
gives him some right which the person against whom he raises the action either
infringes or denies. As far as interest
was concerned, he referred to Scottish
Old People's Welfare Council, Petitioners, 1987 S.L.T. 179 at page 186
as follows:
"The interest
must be such as to be seen as material or sufficient. The pursuit of an academic issue would not
suffice, nor would an attempt to seek a general pronouncement of law on facts
which were hypothetical. There must be a
real issue. But the existence of a
sufficient interest is essentially a matter depending upon the circumstances of
the particular case. The variety of
adjectives which are employed to describe the quality of interest required by
the law reflects the difficulty of defining any single criterion."
[55] In developing this argument he referred to Adamson v Edinburgh Street
Tramways Co (1872) 10 M 533 and Ogston
v Aberdeen Tramways Co (1896) 4
S.L.T. 190 (H.L.). In the latter case
Mr Ogston was held entitled to sue in respect of an interference with the
highway (a pile-up of snow on the side of the street) which was applicable to
him in common with the rest of Her Majesty's subjects. Mr Anderson argued that in the instant
case the petitioner could show further proof of peculiar damage to herself but,
in any event, submitted that she was entitled to sue in respect of omissions in
relation to sewerage, surface water, roads and planning. These entailed public
duties owed by public bodies to her in common with the rest of Her Majesty's
subjects.
[56] Reference was also made to MacCormick
v Lord Advocate 1953 SC 396 where
Lord President Cooper stated:
"It is true that
we in Scotland recognise within certain limits the actio popularis, in which any member of the public may be entitled
as such to vindicate certain forms of public right."
In Wilson v Independent
Broadcasting Authority 1979 S.C. 351, three members of a group campaigning
in the period leading up to the first referendum on devolution of political
power in Scotland were held to have title and interest to sue for an interdict
to restrain the showing of certain political broadcasts by the Independent
Broadcasting Authority on the basis that they did not maintain a proper balance
between opposing views. At page 356,
in dealing with title and interest, Lord Ross posed the question whether a
member of the public who was an ordinary voter could enforce the duties laid on
the authority. In deciding that he could
he said:
"In Scotland,
I see no reason in principle why an individual should not sue in order to
prevent a breach by a public body of a duty owed by that public body to the
public."
[57] That case was interpreted in Scottish Old People's Welfare Council, Petitioners, page 184,
as deciding that "where there is a duty owed by a public body to the public, an
individual member of the public has title to sue and if he also has an interest
he will have the right to do so."
[58] Mr Anderson submitted that in the instant case the
respondents, who were undoubtedly public bodies, owed duties under the Sewerage,
Roads and Planning Acts to the public. Thus,
assuming they were failing in their duties, then, as a member of the public,
the petitioner had title to sue to prevent such breaches, provided that she
could show an interest. As far as
interest was concerned, Mr Anderson submitted under reference to Clyde and Edwards paragraphs 10.12
and 10.13 (and Burns on Interdict)
that a "true interest" was an interest in any right recognised by law and for
that test to be satisfied the substance of the interest must be such as the law
would enforce and in particular must be of a sufficiently material or concrete
character.
[59] Reference was made to Shaw
v Strathclyde Regional Council 1988
S.L.T. 313, Air 2000 Ltd v The Secretary of State for Transport (No.2)
1990 S.L.T. 335 and Lennox v Scottish Branch of the British Show Jumping
Association 1996 S.L.T. 353 as well as to Clyde and Edwards at paragraph 10.21 and the case of Stirrat Park Hogg v Dumbarton District Council 1996 S.L.T. 1113. Inter
alia, Clyde and Edwards said the following:
"Essentially,
judicial review is concerned with an alleged abuse (which includes excess) of
power. If there exists a relationship of
duty and right such as to give a title to sue, then in most cases anyone with a
title should have a sufficient interest, without the need to explore these
issues separately. It must be predicated
in any case that there is a material issue to be resolved.
Where the case
concerns the exercise of statutory duties a consideration of the statute will
identify the class of persons who may have a right, express or implied, to
complain about any excess of statutory power.
If the statute is one designed to benefit all members of the public,
then any member of the public will have title to sue in respect of a failure to
conform with the statute."
[60] They went on to say the following:
"In whatever
context the problem arises, whether it be in the public arena or a private
setting, the extent of the legal relationship should also determine the extent
of those having an interest in the matter to be reviewed. If the issue is a real and material one, then
a person with title should generally be able to affirm an interest."
At paragraph 10.25 they
pointed out that the idea of a single member of the public raising an action to
challenge a matter which was of importance to the public in general, or
particularly to one sector of the public, was not unfamiliar in Scottish
practice.
[61] Mr Anderson submitted that it would be not be appropriate
for some busybody to complain about breaches of statutory duty but the
petitioner in this case clearly had a material interest in view of the adverse
effects on her and her property, of the breaches of duty which were averred.
[62] His second argument was that the petitioner had title and
interest to sue as a payer of the community charge and council tax in relation
to the use made of those funds.
[63] In Stirling County
Council v Falkirk Burgh Council
1912 S.C. 1281 certain ratepayers, who had paid their assessments for the year,
were held to have a good title to bring an action against the magistrates for
declarator that the defenders had no right to levy or exact rates for the
purpose of paying certain expenses which they sought to include when fixing the
burgh general assessment for the year, these expenses being argued to be
inappropriate.
[64] As I read that case, it was decided on the basis that the
pursuers had themselves sufficient title and interest and it was not regarded as
an actio popularis.
[65] In Farquhar & Gill v Aberdeen Magistrates 1912 S.C. 1294, the magistrates of a burgh
sought to include in their estimates certain expenditure incurred in an
unsuccessful promotion of a provisional order and private bill, along the same
lines as in the previous case. Once
again it was held that the individual rate payers who brought an action of
suspension and interdict had title and interest to sue.
[66] At paragraph 10.34 of Clyde
and Edwards the following is stated:
"A local ratepayer
has a title to challenge unlawful or ultra
vires acts of the local authority, particularly in matters of expenditure
or funds raised by rating."
[67] Reference was also made to the D & J Nicol case, R.
v Inland Revenue Commissioners ex p., National
Federation of Small Businesses [1982] AC 617, Mulvey v Secretary of State
for Social Security 1995 S.C.L.R. 1064 and Stirrat v Edinburgh City Council
1999 S.L.T. 274.
[68] In D & J Nicol
the pursuers were held to have title to sue as harbour rate payers and Lord Dunedin,
at page 17, said the following:
"But when I find
that the respondents in the capacity of harbour ratepayers and members of the
constituency erected by the Act of Parliament to elect the trustees, and as
such are also persons for whose benefit the harbour is kept up, I cannot doubt
that they have a title to prevent an ultra
vires act of the appellants, which ultra
vires act directly affects the property under their care. It is not only that loss of that property
through improper acting may have the effect of imposing heavier rates on the
respondents in the future, but, in the words of Lord Johnston in the Stirling County Council case, as they
have contributed to the funds which bought the property, 'they have an interest
in the administration of a ... fund to which they have contributed' and a title
flowing from that position and interest."
[69] Clyde and Edwards at paragraph 10.34
opined as follows:
"It is thought
that the relationship between the payer of a local tax and the local authority
to whom he pays it should be sufficient to enable him to challenge any excess
of the authority's powers."
[70] Mr Anderson submitted that under the law of Scotland a
local tax payer always had, and the payer of local community charge or council
tax now had, a title to challenge unlawful or ultra vires acts of local authorities and now Scottish Water,
particularly in matters of expenditure of funds raise by that local tax and
that the relationship between the payer of the local tax and the authority to
whom he paid that tax is such that it should be sufficient to entitle him to
challenge any excess of the authority's powers.
He submitted that Shetland Islands Council was required by law to
estimate the amount of expenditure to be incurred on its services, including
services provided as roads authority and planning authority and, to the extent
not defrayed by the separate water and sewerage charges collected and remitted
to Scottish Water, any other services relating to water and sewerage such as
the surface water.
[71] The services to be provided were set out in statute including
the Sewerage (Scotland)
Act 1968, the Roads (Scotland)
Act 1984 and the Town and Country Planning (Scotland)
Act 1997. To the extent that the
authorities provided estimates for the provision of those services and
collected funds for the provision of them, when they adopted a policy of
omitting effectually to drain the area of surface water, a policy of omitting
to inspect, control and maintain their sewers and road drains and a policy of
omitting to consult the water and sewerage authorities in planning matters, the
petitioner, having an interest as a person adversely affected, had a good title
to sue for declarator that they had no right to adopt such policies, having
made payment for these services through her payment of the community charge and
the council tax.
[72] Thirdly, Mr Anderson submitted that the petitioner had
title and interest to sue as a result of her "absolute interest" in the title
to the property affected. His submission
was that Scots law had established a rule that a form of title must exist at
the date of bringing an action. If no
title existed at the outset when the action was raised, then the lack of it
could not subsequently be made good by assignation or retrocession but, if a
form of title existed at the outset, then that qualified title might be cleared
or the title completed.
[73] In Symington v Campbell (1894) 1 S.L.T. 478, the
purchaser of a vessel brought an action of damages, in his own name and as
assignee of the seller, for injuries which had been done to the vessel by a
third party prior to the date of purchase.
The summons was signetted and served on 28 June 1893 but the assignation of all claims
competent from the seller to the purchaser did not take place until 29 June 1893. The defender pleaded no title to sue and that
plea was repelled, except for one aspect, by the Lord Ordinary. The defender reclaimed. At page 480 the Lord President said the
following:
"This is not the
case of a person having at the time of raising the action a substantial right,
requiring only formal completion. The
title of the pursuer here depends on an assignation, which he does not say had
been gone into at all before the action was raised. The whole transaction took place after the
summons had been served... I am of opinion that the defender has stated a good
objection to the pursuer's title, that the Lord Ordinary's interlocutor should
be recalled, and the action dismissed."
At page 481 Lord Adam
said the following:
"The question before
us is whether at the date of raising the action the pursuer had a title to sue. I think he had not, and that suspecting this
he procured the assignation the next day in order that he might have a good
title. It has been suggest that this
case is like that of executors who have been held able to sue competently before
getting confirmation, and that in consequence it is competent for the pursuer
here to sue. But the difference between
the cases is that the executors had a good title at bottom, which they only
required to have formally made absolute, while the pursuer here had absolutely
no title, till the assignation had been entered into."
In Bentley v Macfarlane 1964
S.C. 76 a motorist was involved in a collision with another car and assigned
his right of action arising out of the collision to a third party. He subsequently raised an action of damages
against the driver of the other car, who pleaded no title to sue. Thereafter the third party reassigned his
right of action to the pursuer. It was
held that having had no title to sue when the action was raised, the pursuer
could not acquire one by a retrocession of his original right of action pendente processu. At page 79 Lord President Clyde said the
following:
"There have, of
course, been cases where a pursuer's title to sue has been affirmed although
that title was not complete or was subject to some qualification. Provided that basically the title is in the
pursuer, his title to sue will be vindicated, and he may complete the steps
required to clear his title of defects or qualification during the action. Executors, for instance, as Lord Adam
observed in Symington, have a good
title to sue although they have not completed confirmation when the action is
raised. And in Westville Shipping Co v Abram
Steamship Co a party with a good title to reduce a contract on the ground
of misrepresentation had a good title to sue, although at the time he raised
his action he had assigned his interest in the subject of the contract to a
third party. That assignation was
subsequently reduced on the ground of misrepresentation. As Lord Dunedin put it, at page 72,
'The original title to set aside a contract induced by misrepresentation was
quite good. It is true that for the
moment there seemed a good answer, namely:
"You have parted with the subject of the contract and therefore you have
lost your interest," but at the that the instrument by which they had so parted
was swept away the original title was then in all its force.' Lord Dunedin was
careful to distinguish this case, where there was a title to sue throughout,
although subject at the date of the raising of the action to a qualification,
from a case such as Symington, where
at the date of the raising of the action there was no title at all. Nothing that he said in any way qualifies or
doubts the validity of the decision in Symington,
which he refers to and distinguishes."
[74] Reference was also made by Mr Anderson to the case of Rae v Meek (1888)15 R. 1033, 16 R. (H.L.) 31 as authority for the view
that contingent beneficiaries have title to sue trustees. A beneficiary, however, was not entitled to
sue for a debt due to the estate. It was the executor who had to sue for such a
debt (Morrison v Morrison's Executrix 1912 S.C. 892). If there were no such rule then a debtor to a
deceased might be liable to actions at the instance of many different persons. Furthermore, some persons might
purport to discharge or compromise or otherwise render res judicata the question of the debt, thereby making it difficult for
the executor to do his job for the benefit of all.
[75] The position was different in the instant case however. There were no debts due to the deceased's
estate, these all having been ingathered and the executry had been completed in
that respect.
[76] By section 8 of the Succession (Scotland) Act 1964 and,
more particularly, as a result of the discharge of any legal rights and the
completion of the executry as well as the docquet on the confirmation, the
petitioner had an absolute interest in the property here which could not be
defeated. It was true that title
required to be completed by infeftment in due course but, nevertheless, it was
clear that basically the title was in the petitioner, paraphrasing what was
said by the Lord President in Bentley.
[77] The action did not relate to a debt due to the deceased's
estate for no such thing existed. It was
clearly established that an executor had a title to sue, even though at the
time the action was raised he did not have confirmation.
[78] This however was not a rule peculiar to executors, as was made
clear in Bentley, and in
Mr Anderson's submission the rule as to the title being basically in the
pursuer and being vindicated or completed during the action was of general
application. In the current case, by
statute, title was indefeasibly in the pursuer and, as the action proceeded,
would be completed by infeftment before any decision was made by the court or
at least extracted.
Submissions for the first respondent
[79] Mr Gale invited me to
sustain the first plea-in-law for the first respondent and dismiss the
petition.
[80] He made one or two general observations on title and interest
and the procedure in general.
[81] The Record extended to some twenty pages and contained only the
petition and answers for the first and second respondents. The answers for the interested party had not
been incorporated. Neither did the
Record contain any adjustments or amendments.
[82] Mr Gale submitted that in the context of judicial review
there was a discretion as to the procedure and a degree of informality.
[83] As far as the respondents were concerned the first hearing was
in the nature of a debate dealing with the preliminary pleas on behalf of their
clients.
[84] He referred me to the Minute of Proceedings of the hearing of 20 June 2007 where it was
confirmed by Mr Anderson that the petitioner would not be leading any
evidence and where the other parties confirmed that they would also confine
their submissions to legal ones.
[85] It was quite frequently the case that a first hearing was
conducted on the basis of affidavits or an agreed statement of facts, for
example if it related to a policy decision by a public body which was a matter
of record.
[86] This case, however, did not lend itself to that approach, due
to the expansive nature of the petitioner's pleadings which Mr Gale said
he had some difficulty in understanding. That was perhaps the reason why this
case was proceeding, as it were, by way of debate on relevancy and questions of
title and interest.
[87] Mr Gale drew my attention to the case of Waddell & Others v Stewartry District Council 1977 S.L.T.
(Notes) 35.
[88] This was simply an illustration of the concept that sometimes
it was necessary to consider the relevancy of pleadings when dealing with a
plea of no title to sue.
[89] It was contended in that case that the action was patently
irrelevant and it is interesting to note that, amongst other things, Lord Wylie
said the following, at page 35:
"The first plea
stated by the defenders is that the pursuers have no title to sue, but this
plea was argued in the context of the submission that the summons disclosed no
averments from which an inference could be drawn that the defenders were acting
in an illegal manner or that what they proposed to do, in respect of which
interdict was sought, was ultra vires. The pursuers state that they were former rate
payers of the Burgh of Gatehouse of Fleet and now pay rates to the
defenders. I am satisfied that, while no
member of the community has a title to call the local authority to account
generally for alleged maladministration of burgh property, a ratepayer has an
undoubted title to vindicate the customary rights of the inhabitants of the burgh
or to prevent an ultra vires act
directly affecting property alleged to be inalienable."
[90] With those general remarks out of the way, he submitted that he
had never previously come across a case where submissions were made in the
abstract without reference to all the pleadings, the remedies sought, the
averments in support of those remedies and the pleas-in-law.
[91] Title and interest were individual both to the petitioner and
to the individual respondents. It might
be that there were title and interest in relation to one, but not another
respondent.
[92] He turned then to the pleadings.
[93] Before doing so, however, he drew my attention to
Rule 58.6 which directed that petitions for judicial review should be in
Form 58.6.
[94] Paragraph 1 should deal with the designation, title and
interest of the petitioner and the respondents.
Paragraph 2 should narrate the acts, decision or omission to be
reviewed. Paragraph 3 should
specify the remedies sought.
Paragraph 4 should specify the grounds on which the petitioner
challenged the act, decision or omission.
Paragraph 5 should set out facts in support of the grounds, and
paragraph 6 should set out the legal argument on which it was intended to
rely.
[95] There should then follow pleas-in-law.
[96] Turning to the petition in the instant case, he drew my attention
first of all to paragraph 1 where the following averments are made:
"That the
petitioner is Mrs Patricia Anderson who resides at 'The Sea Chest', East
Voe, Scalloway, Shetland and who is vested in the title to that
property as the surviving spouse of the late Major W A Anderson, Retd., MC TD
MA JP. The petitioner pays annually a
community charge, including an element for the statutory services of both
respondents, including a water and sewerage charge."
It then sets out the details of the
respondents and says that Nicolson Bros, who are described as the residual
landowners, may have an interest in the application. Mr Gale submitted that he had no idea
what "residual landowners" meant.
[97] He then read the remainder of paragraph 1 and referred to
an affidavit by Carole Hope, Solicitor, as to the effects of a docquet on
the Confirmation. Mr Anderson had also referred to that.
[98] It was plain, he said, that the petitioner was not the infeft
proprietor of the Sea Chest. There was
no doubt that she had an interest in the property and could insist on having it
conveyed to her, but that had not occurred.
When one went on to consider the remedies sought it was apparent that
most of them proceeded upon her having a proprietorial interest in the Sea
Chest and she had no such interest.
[99] There was no concept in Scots law that would support the
proposition that she was "vested in the title to the property". He submitted that that was nonsense.
[100] Reference was made to the Small Claims which were raised by
Mr Anderson on 23 December
2005 and January 2007 in the Sheriff Court
at Lerwick.
[101] According to the answers for the respondents Mr Anderson was
referred to in the first Small Claim as "the person with whom title to the property
... presently rests". In the second he was
averred to be "the executor of the late Major W A Anderson etc who is the
present infeft proprietor of the property."
[102] Neither summons made any reference to the petitioner having any
heritable interest.
[103] While she had a right to have the title transferred to her that
had not occurred.
[104] Mr Gale then referred to paragraph 2 of the petition
and drew my attention again to Form 58.6.
This paragraph should set out the acts or omissions to be brought under
review. I do not propose to rehearse the
terms of this paragraph or of the pleadings generally since they are
voluminous.
[105] Mr Gale submitted that nothing indicated what "the said
development" referred to in the paragraph was.
He also submitted that the reference to a suggestion "to all concerned"
that they had duties to discharge in this respect and the following reference
to a suggestion being made to the respondents in particular, led one to
question who were the other people concerned.
[106] He submitted that contrary to what was averred in the petition as
being the position of Scottish Water, Shetland Islands Council had no statutory
duties in terms of the Sewerage (Scotland)
Act as averred.
[107] He submitted that, at best, it appeared that what was being said
was that certain statutory duties were incumbent upon the respondents which
they were failing to discharge and that in denying that they had such
obligations they had adopted a policy. A
statement that one repudiated liability was not, however, the adoption of a
policy. A policy was a broader concept.
[108] The first respondents' position was set out in
Answer 2. In particular they had no
responsibility to provide "sustainable drainage". It was also said in answer
that the responsibilities of the first respondents in terms of the Sewerage (Scotland)
Act 1968, as amended and the transfer scheme were apparent from their
respective terms.
[109] As far as the Sewerage (Scotland) Act was concerned, no duties
were incumbent upon the first respondents at all, and certainly no duties in
relation to sustainable drainage such as might affect the Sea Chest.
[110] Mr Gale then turned to paragraph 3 which set out the
various remedies sought. These were in
the following terms:
"That the
Petitioner seeks:
(A)
(1) Declarator that the
Respondents are under a duty in terms of section 1(1) of the Sewerage
(Scotland) Act 1968 (as amended) to provide, at reasonable cost, sewers or
drains that will effectually drain the area in 'The East Voe', Shetland to
which this Petition relates, and that they have omitted or failed to do so.
(2) Declarator that the
Respondents are not entitled to maintain a policy that they owe no duties to
provide a surface water drainage system in the area know as 'The East Voe',
Shetland, and that their statement they have no liability in that respect is ultra vires et separatim unlawful.
(3) An Order for Specific
performance requiring the Second Respondents to implement the duties incumbent
upon them under section 1(1) of the Sewerage (Scotland) Act 1968 (as
amended) by drawing up (within 21 days or such other period as shall seem
reasonable to the Court) a plan providing, at reasonable cost, a system for
effectually draining that area of the East Voe, Shetland marked as Zone 3
on the SIC Burra and Trondra Proposal Map of surface water; and thereafter to implement said plan as soon
as reasonably practicable.
(B)
(1) Declarator that the
Second Respondents are under a duty to maintain the sewerage pipeline within
the area of land owned by them on 'The East Voe', Shetland and that they have
omitted to do so.
(2) Declarator that Second
Respondents are not entitled to maintain a policy that they owe no duty to
maintain the sewerage pipeline or the land in which they are infeft or vested
in the area known as 'The East Voe', Shetland, and that their statement they
have no liability in that respect is ultra
vires et separatim unlawful.
(3) An Order for Specific
Performance requiring the Second Respondents to restore the land formerly
covering the sewer pipeline hereinafter condescended upon that is owned or
vested in them and which has been eroded by water and to do so, within
21 days or such other period as shall seem reasonable to the Court, by
appointing a suitably qualified and independent Engineer with instructions to
take into account the needs of all affected Parties and to draw up a
specification for the repair of damage to the surrounding area, the restoration
of said sewerage pipeline to its former condition, and the introduction of
suitable measures to prevent any repetition;
and thereafter to implement said specification as soon as reasonably
practicable.
(C)
(1) Declarator that the
entitlement of the First Respondents as Roads Authority under the Roads (Scotland)
Act 1984 to create road drains extends only to that which is necessary for
effectually draining the road.
(2) Declarator that Shetland
Islands Council is not entitled to maintain a policy that they are entitled to
allow other parties to feed their surface water into road drains created under statute
by the First Respondents as Roads Authority and that their statement they have
no liability to exclude such water is ultra
vires et separatim unlawful.
(3) An Order for Specific
Performance requiring the First Respondents, within 21 days or such other
period as to the Court shall seem reasonable, to draw up a specification or
plan which will effectively drain the surface of said B9074 Road and to take
such steps as to the Court may seem reasonable to exclude from the road drains
under their control surface water being fed in by other parties.
(D)
(1) Declarator that as a
result of the failure of the Second Respondents to fulfil as condescended upon
the duty incumbent upon them to effectually drain of surface water the area to
which this Petition relates, the Petitioner has suffered loss and damage and
inconvenience.
(2) Declarator that as a
result of the failure of the First Respondents to fulfil as condescended upon
the duties incumbent upon them to be expected from them as a reasonable and
competent Planning Authority, the Petitioner has suffered loss and damage and
inconvenience.
(3) As Damages resulting from
the failure of the First and Second Respondents, jointly and severally or
severally, to perform their said statutory duties, payment by the Respondents
(jointly and severally or severally) to the Petitioner of the sum of FIFTY
THOUSAND POUNDS (ฃ50,000) STERLING (together with interest thereon at the rate
of eight per centum per annum from the date of citation hereof until payment)
or such other sum as may to the Court seem reasonable.
(E) The expenses of this
Application
(F) Such further decrees or
orders as may, in all the circumstances of the case, seem to the Court to be
just and reasonable."
[111] 3(A)(2) appeared to be directed at both respondents.
[112] In relation to 3(A)(2), if the respondents had not repudiated
liability they would have been acting unlawfully.
[113] 3(A)(3) related only to the second respondents.
[114] Mr Gale had no interest in paragraph 3(B).
[115] 3(C)(1) sought certain declarators under the Roads (Scotland)
Act 1984, while 3(C)(3) sought an order for specific performance in relation to
drainage.
[116] 3(D) was somewhat peculiar.
(D)(1) referred to the second respondents and appeared to relate to an
alleged failure in terms of either 3(A) or 3(B) on the part of those
respondents which it was said had led to loss and damage. The averments about loss and damage were
contained later on in the petition.
Inconvenience was personal to the petitioner, but the loss and damage
was caused to the property, according to the averments.
[117] In relation to 3(D)(2) Mr Gale submitted that there had been
no precursor. The matter related to the
first respondents, but referred to certain failures as a planning
authority. No reference was made to any
specific duties, the reference being to duties reasonably to be expected of
them.
[118] 3(D)(3) was a claim for
damages and as far as the first respondents were concerned it appeared to be
based on alleged failures to perform unspecified statutory duties as planning
authority.
[119] Mr Gale then turned to look at the pleas-in-law. All of them related to both respondents and
there was no distinction drawn between them.
[120] Plea-in-law 1 related to the order sought at paragraph 3(A)(1). Plea-in-law 2 related to 3(A)(2). Plea-in-law 3 could only refer to the
second respondents. Pleas-in-law 4,
5 and 6 could only relate to 3(B), the responsibility of the second
respondents. Plea-in-law 7 related
to road drainage and the order sought at 3(C)(3). This related to the first respondents and not
the second.
[121] Pleas-in-law 8 and 9 could only refer to the first
respondents.
[122] Plea-in-law 10 related to damages and a failure to perform
statutory duties and related to both respondents. There was no mention whatsoever of any duty
incumbent on the first respondents as a planning authority.
[123] Turning back to Form 58.6 he submitted that the pleas-in-law
did not relate to each ground of challenge and remedy sought.
[124] The petition had been in that state since it was drafted and the
pleas-in-law were so inconsistent with the order sought as to make one or other
of them at least meaningless.
[125] All of this was necessary to put the question of title and
interest in context because it could not be looked at in the abstract. One had to look at what was averred, the
orders sought and the pleas-in-law as well as the statutory duties which it was
said that the first respondents had failed to fulfil. It was interesting to discuss the concept of actio popularis but doing so without reference to the particular
statutory duty involved was utterly meaningless.
[126] Under reference to Clyde
& Edwards at para.10.08 he submitted that in deciding whether a member
of the public had title and interest to sue for performance of a statutory
obligation, one had to construe the particular statute. That had been ignored by Mr Anderson.
[127] He then turned to paragraph 4(A) of the petition, which I refer
to for its terms.
[128] He took no exception to the history set out in relation to
transfers to the new sewerage authority.
[129] There was, however, a suggestion that the respondents as planning
authority should have obtained some kind of contribution from developers
towards drainage apparently in terms of section 1 of the Sewerage (Scotland)
Act.
[130] There was however no such duty upon the first respondents.
Section 1(1) of that Act is in the following terms:
"(1) Subject to the provisions of this Act, it
shall be the duty of Scottish Water to provide such public sewers as may be
necessary for effectually draining its area of domestic sewage, surface water
and trade effluent, and to make such provision, by means of sewage treatment
works or otherwise, as may be necessary for effectually dealing with the
contents of its sewers."
[131] There was accordingly no duty upon the first respondents
whatsoever.
[132] The duty was transferred in 1996 to North of Scotland Water
Authority and then in 2002 to Scottish Water.
[133] There being no duty on the first respondents, the petitioner
could have no title and interest to enforce any such duty whether as a
heritable proprietor, a member of the public or a community charge payer.
[134] This might be a matter of relevancy but Mr Gale said that he was
trying to indicate that the specific statutory duties which were claimed by the
petitioner to give her a title and interest to sue did no such thing.
[135] Answer 4(A) called on the petitioner to aver what aspects of
planning guidance were referred to in her averments, when it was introduced,
what development she was referring to and the identity of the developers.
[136] It is not at all clear from the petitioner's pleadings what or
when the development was.
[137] Paragraph 4(B) related to the question of road drainage and
the Roads (Scotland)
Act 1984.
[138] Mr Gale said that he did not understand what was meant by an
overreaching interest created by statute and prevailing over and above any
title to the land in question but restricted to the statutory purpose. In fact it was not clear what the whole
paragraph meant.
[139] He then turned to paragraph 4(C).
He said that he
had never heard of a drainage impact assessment and had no idea what that
meant. There were such things as visual
impact assessments or traffic impact assessments, but not a drainage impact
assessment.
[140] Lists of statutory consultees were produced, but what application
was being referred to in the paragraph? The pleadings were nonsense and had no
bearing on whatever case the petitioner was seeking to make.
[141] The reference made to an application by Hjaltland Housing
Association did not take the case anywhere.
[142] He asked again what planning applications were being referred to
in the paragraph. This was not
litigation by guess work. There was
absolutely no specification of the applications to which the petitioner
referred. What developments were
concerned, when were applications made and when were the consents granted?
[143] This was important for a number of reasons. One proposition in planning law which was
important was that it was an evolving concept.
Planning advice notes or PANS were constantly being revised as was
planning guidance. Significantly, in
1997 the Town and Country Planning (Scotland)
Act of that year came into force. It in
large part replaced the 1972 Act.
[144] Without knowing when the applications and developments etc were
made, one had no idea of the planning regime which was operative.
[145] One might expect the petitioner to aver what the planning
applications were and when they were, but no such averments could be found.
[146] The respondents had called in Answer 4C for this
specification but that call had not been answered.
[147] Mr Gale submitted that paragraph 4(D) was also nonsense. What was meant by "residual liability"? What was meant by residual liability being
transferred to the second respondents?
"Residual liability" was a meaningless concept. Once liability was transferred it was gone
and no order was sought against the first respondents in paragraph 3(B).
[148] There was no duty of maintenance and inspection of sewerage
pipelines on the part of the first respondents.
[149] Paragraph 4(E) related only to the second respondents and
Mr Gale made no submissions about it.
[150] As far as paragraph 4(F) was concerned, he conceded that the
Roads (Scotland)
Act 1984 Act did indeed impose certain duties upon a roads authority.
[151] However, he invited me to consider section 31(1) and (2)
which are in the following terms:
"(1) The roads authority may, for the purpose
of draining a public road or proposed public road or of otherwise preventing
surface water from flowing onto it -
(a) construct or lay, in it
or on land adjoining or lying near to it, such drains as are considered
necessary;
(b) erect and maintain
barriers in it or in such land as aforesaid to divert surface water into or
through any existing drains;
(c) scour, cleanse and keep
open all drains in it or in such land as aforesaid;
(d) drain surface water from
it into any inland water (whether natural or artificial) or tidal waters.
(2) Without prejudice to section 1(c) above,
where any drain referred to therein was constructed or laid by the roads
authority, they shall scour, cleanse and keep it open."
[152] It was said in paragraph 4(F) that where the roads authority
installed a road drain, they were under a statutory duty to inspect and
maintain it. The "residual liability"
for the discharge of said duties was expressed by said statute to rest with
roads authorities.
[153] Again, it was not clear what was meant by "residual
liability".
[154] It was averred that "certain of those duties may have been
transferred in terms of a transfer scheme."
To which duties was reference being made?
[155] It was also averred that it was not open to the respondents to
fail to comply with their statutory duty by not having a system for the
maintenance and inspection of such road drains as may have been installed in
their area by statutory authority.
[156] However, Mr Gale submitted that section 31 was merely
enabling or empowering. It empowered the
roads authority to create such drains as they considered necessary to drain
public roads. A general statutory duty
to inspect and maintain the road drains was not to be found in that provision.
[157] Mr Gale had no submissions to make on paragraph 4G of
the petition.
[158] He had little to say in relation to paragraph 5(1), which
gives a general description of the area and some of the history but went on to
consider the averments in paragraph 5(2). Mr Gale
said it was not clear when Nicolson Bros were said to have made their
application for outline planning permission, or whether the application was
single or multiple.
[159] If planning permission had been obtained in the face of existing green belt planning policy that was a
matter of no relevance.
[160] The reference to the current Chief Executive of the first
respondents residing there was similarly of no relevance.
[161] Mr Gale said that frequently outline planning permission was
obtained by developers without any detailed specification of the nature of the
development. It was in the context of
detailed planning applications that matters of detail were considered. There was nothing unusual in granting outline
planning permission without going into detail.
[162] The averments about the local authorities discharging duties
under section 1(1) of the Sewerage (Scotland)
Act 1968 would tend to suggest that the timing of all this was before 1996 when
the transfer to NOSWA took place.
[163] It was said that at that time, whenever that was, there was no
prospect or possibility of flooding.
[164] Certain admissions were made in the answers and reference was
made to outline planning permission being granted on 21 August 1970, at
which time the relevant statute was the Town and Country Planning (Scotland)
Act 1948. All that did was establish
that an area of land was suitable for development but did not deal with the
details of the application.
[165] Reference was made to consultation with various statutory
consultees and the petitioner was called upon to state the basis in fact upon
which she averred that the first respondents were in breach of their statutory
duties.
[166] Even after that, however, there was still a failure to make clear
what development the petitioner was complaining about insofar as the granting
of consent to the development gave rise to a failure on the part of the
authority to carry out their duties as planning authority.
[167] Mr Gale then referred to paragraph 5(3) of the petition
and again asked what development was being referred to. He went on to say that
it appeared to be averred that the duty which Scottish Water had under
section 1(1) of the 1968 Act was discharged insofar as it related to the
effective drainage of sewage.
[168] It was said, however, that there was a failure in respect of the
second part of that duty effectually to drain the area in question of surface
water. That failure was said to be on
the part of those for whom the second respondents are now responsible.
[169] Reference was made to applications for outline planning
permission to build more groups of houses in the area or hill above the Sea
Chest, but when did this happen? It was
said that the events (namely flooding, erosion and water damage) would not have
happened had the respondents discharged their statutory duties of procuring or
installing a sustainable drainage system for effectually disposing of surface
water in the area and it was the failure and omission of the respondents to do
so which had caused the damage complained of.
However, which respondents were being referred to?
[170] It was said that Nicolson Bros submitted said planning
application to the first respondents, but which application was being referred
to?
[171] It was also said in Mr Anderson's Note that one of the policies
adopted was that the first respondents would not consult Scottish Water. The contention was that this was a failure in
duty. That, however, was inconsistent
with what was said in the pleadings. It
was said in terms that the first respondents, as the local planning authority,
consulted the second respondents (or the North of Scotland Water Board, their
statutory predecessors) as statutory consultees in relation to drainage. That was either wrong or what was said in the
Note of Argument was wrong.
[172] It was said that in one phase some fifteen new houses were
constructed, in a later phase a further fifteen new houses were constructed and
it was understood that planning permission had been granted or at any rate
applied for to allow for the construction of another fifteen new houses. It was also averred that neither the first
respondents nor the local authority made any objections or observations and
they were called upon to produce copies of said applications, consultations and
responses. It was not at all clear what
it was they were called upon to produce, since no details were given about the
applications.
[173] Later on the petitioner referred to the procuring by many local
authorities of an infrastructure by making it a condition of planning
permission that developers require to pay for and install drainage systems and
roads. It was said that the value of
this development (which development?) (estimated at ฃ1 million) would
have, and still could allow for that to be done. It was not said how it could now be done
assuming consent had been given and acted upon.
[174] It was averred that to the extent that they did not procure it
from others, the statutory duties to do so remained upon the local authority or
the respondents.
[175] What did "to do so" mean?
Did it mean provide or procure?
Reference was made to the body responsible. Who was that?
[176] Paragraph 5(4) was then considered.
[177] All of the damage referred to therein, apart from the question of
emotional distress was to the property, said Mr Gale.
[178] He submitted that, assuming the claimant had title and
interest, the action should,
essentially, be for abatement of nuisance at common law. That effectively was what had happened in the
sheriff court.
[179] If there was a claim, it was not for breach of statutory duties.
[180] Paragraph 5(5) set out the claim for damages, mostly based
upon damage to the property.
[181] Mr Gale queried what was meant by "a development of the size
to which this petition relates". What
was it and when?
[182] He then looked at paragraph 6 and submitted that the
reference to "since the dates specified" in the third sentence was meaningless
since no dates had been specified.
Again, there was a reference to the possibility that the first
respondents retrospectively could require of the developers some contribution
to the construction of a sustainable system for surface water drainage. No authority for such a proposition was
averred.
[183] Reference to the "sites to which this petition relates" was
meaningless for the reasons already stated.
[184] Reference was made to the petitioner being a local resident and
community charge payer, which, it was said, gave her title and interest to seek
the discharge by the second respondents of their positive duty under
section 1 of the 1968 Act.
[185] No reference was made to her having title and interest as a local
resident and community charge payer in respect of the duties of the first
respondent.
[186] Mr Gale indicated that he had gone through the pleadings to
consider the issue of title and interest in its proper context, namely in
respect of (a) the title and interest of the petitioner to assert liability on
the part of a statutory body and (b) in respect of the remedy sought.
[187] Mr Gale went on to Mr Anderson's arguments.
[188] The first of these was that the matter was res judicata.
[189] I indicated that I did not need to hear him on that point, but
nonetheless he submitted that Docherty
was not an actio popularis. It was very specific and had no application
to the principle of res judicata. The argument was misconceived.
[190] Ground 3 related to the petitioner's absolute interest in
the title.
[191] It was said that the petitioner had an absolute interest in the
title to the property affected, and that was expanded on in paragraph 3 of
the answers to the Minute of Amendment.
[192] It appeared from that that the Town and Country Planning
(Scotland) Act 1997 was the one which contained the duties which were said to
have been breached, although there were no factual averments from which the
timing of the events narrated could be deduced.
[193] Mr Gale submitted that the cases of Symington v Campbell and Bentley v Macfarlane to which Mr Anderson had referred were irrelevant.
[194] Neither of them related to heritable property and they were both
specific cases on their own facts.
[195] He submitted that the law relating to heritage was very
clear. In order to qualify so as to have
a title to seek the declarator and damages which the petitioner sought, she had
to assert a heritable title. It was said
that she had an absolute interest in the title to the property. In paragraph 1 of the petition she was said
to be "vested in the title to that property".
[196] It was said that a quotation was sought for solicitors to be
engaged to transfer title from the executor, but that had still not been done.
[197] Mr Anderson's submissions had been completely
irrelevant. The law did not recognise
any heritable interest short of infeftment.
[198] In this regard he referred to the case of Sharp v Thomson 1997 SC (HL) 66.
[199] In particular he referred to the speech of Lord Clyde at
page 80 to the following effect:
"As the argument
before this House developed, it became clear that no challenge was being made
of the careful analysis made by the judges of the First Division of the basic
concepts of Scottish law which apply in the area of heritable property. A basic distinction between real rights and
personal rights was not questioned. It
was not suggested that there is any kind of hybrid right somewhere between a
real right and a personal right. It was
accepted that Scottish law holds to a unitary theory of ownership by which only
one right of ownership can exist in respect of any one thing at any one time."
[200] That case involved a dispute between a couple who had concluded
missives for the purchase of a flat from a company, the disposition having been
recorded on 21 August 1990, and receivers to the company who were
appointed on 10 August 1990.
[201] It was held that, at the time when the floating charge
crystallised with the appointment of the receivers, the company held the
recorded title to the flat but had no beneficial interest therein and the ability
to grant deeds in fraud of the disposition to the couple did not amount to a
right of property in law. It followed
that the floating charge did not attach to the property which was the subject
of the disposition.
[202] Mr Gale submitted that only one title existed and there was
nothing short of infeftment.
[203] He also referred to the case of Burnett's Trs. v Grainger
2004 SC (HL) 19 and in particular to the speech of Lord Hope at
page 25, paragraph 15, as follows:
"[15] It can be seen that none of the changes
effected by the conveyancing statutes have departed from the essential
principle that up to the moment of the purchaser's infeftment the seller
remained infeft with the superior and the holder of the real right in the
property. The purchaser completed his
title by recording the disposition in the General Register of Sasines (Craigie, Heritable Rights,
p. 396). This was the act of infeftment
which divested the person who was last infeft of the real right. As Craigie
explains (at page 458): 'He who
first completes the real right, or, in other words, he who first divests the
person last infeft, has the preferable right to the lands.' ... Prior to the
recording of the disposition in the register the right of the purchaser was a
personal right to the lands only. ... It
carried with it all the rights of an uninfeft proprietor. But the right which the purchasers had was
not a real right. So it was ineffective
as against any third party who was able to obtain infeftment with the superior
before he did."
[204] In that case the pursuer was the permanent trustee on the estate
of a debtor who was sequestrated in May 1991.
In October 1990 the defenders, the Graingers, had entered into a
contract with the debtor to purchase heritable property from her. The relevant disposition was executed on 8 November 1990 and the price
was paid. The disposition was not
recorded until 27 January 1992. By 25 November 1991, at the latest, the
pursuer was aware that the defenders still intended to record their title to
the property and on 10 December 1991 the pursuer recorded a notice of
title in the register giving notice that, as trustee, he had right to the flat.
[205] The pursuer raised an action in the sheriff court seeking inter alia a declarator that the
property was vested in him as the permanent trustee and the matter went all the
way to the House of Lords where it was held that ownership in lands was
transferred by recording the disposition, not by mere agreement, and any
disponee who failed to record the disposition was not infeft. In terms of the bankruptcy legislation,
heritable property which the debtor had sold and disponed but on which the
purchaser was not infeft was regarded as forming part of the debtor's estate that
vested in the trustee in sequestration by adjudication. The uninfeft proprietor had a "personal fee"
which had the characteristics of a personal right and which was of no effect
against adjudgers and bona fide
purchasers who were first infeft. In
short, since the pursuer had recorded his notice of title and become infeft in
October 1991, his infeftment was to be preferred to the infeftment of the
defenders, who recorded their disposition in January 1992.
[206] It was clear that the petitioner was not infeft in the
property. She therefore had no title or
interest to seek damages, however they had been caused, where they related to
damage to the property.
[207] Reference was then made by Mr Gale to Court of Session Practice and Procedure, edited by Lord
Macfadyen.
[208] He quoted the introduction to Chapter 2 on Title and Interest
(C/103) to the following effect:
"Title can
competently be assigned to another prior to the raising of the action, but an
assignation or retrocession to a pursuer after that date cannot cure an earlier
lack of title. Where an assignation is
validly made, the assignee acquires only those rights possessed by the cedent
and may sue only for loss already suffered by the latter at the time the
assignation is made. A party whose title
is formally defective, but who 'at bottom' has title to sue, may put right such
a formal defect during the course of the action."
[209] The cases of Bentley
and Symington were referred to but
what was being considered was a defective title. All of this was irrelevant, however, in
relation to heritage.
[210] Mr Gale however went on to look at Mr Anderson's
summary and conclusion in the note which he had provided in relation to
ground 3.
[211] Those were in the following terms:
"Accordingly, it
is respectfully submitted that on this Head 3 - Title and Interest to sue,
as a result of her absolute interest in the title to the property adversely
affected by failures of the Respondents to discharge their statutory duties, on
the basis of the authorities set out above, the Petitioner in the instant Petition
has fundamental title and therefore title to sue and the real and material
interest to sue (but always provided that the Petitioner completes her title as
the action proceeds or prior to any extract)."
That simply had not happened and
there was no indication that it was going to happen.
[212] The proposition was wrong in law in any event.
[213] Paragraph 3 of the Answers to the Minute of Amendment had
referred to the petitioner having an absolute interest as a result of her
entitlement under section 8 of the Succession (Scotland) Act 1964.
[214] Mr Gale read section 8(1) of the Act, which is to the
following effect:
"8(1) Where a person dies intestate leaving a
spouse, and the intestate estate includes a relevant interest in a dwelling
house to which this section applies, the surviving spouse shall be entitled to
receive out of the intestate estate -
(a) where the
value of the relevant interest does not exceed ฃ130,000 or such larger amount
as may from time to time be fixed by order of the Secretary of State -
(i) if
subsection (2) of this section does not apply, the relevant interest;
(ii) if the
said subsection (2) applies, a sum equal to the value of the relevant
interest:
(b) in any other
case, the sum of ฃ130,000 or such larger amount as may from time to time be
fixed by order of the Secretary of State:
Provided that,
if the intestate estate comprises a relevant interest in two or more dwelling
houses to which this section applies, this subsection shall have effect only in
relation to such one of them as a surviving spouse may elect for the purposes
of this subsection within six months of the date of death of the intestate."
[215] In this case it was not suggested that the value of the property
exceeded the specified sum, nor did subsection (2) apply.
[216] As a matter of fact the property is valued at ฃ100,000, the
confirmation is dated 10 March
2004 and a docquet transferring the property to the petitioner by
Mr Anderson as executor is endorsed thereon and dated 18 November 2007.
[217] This docquet is in terms of Schedule 1 to the 1964 Act.
[218] Mr Gale submitted that that did not confer any specific interest
short of infeftment upon the surviving spouse.
[219] He then moved on to grounds 1 and 2 together, namely that as
a member of the public seeking to enforce statutory duties owed to the public
and as a community charge payer and council tax payer, the petitioner had title
and interest to raise the present proceedings.
[220] In order to deal with this approach Mr Gale had gone through
the pleadings at length, as I have indicated.
[221] He referred again to Clyde
& Edwards on Judicial Review at page 375, para.10.08. That is in the following terms:
"A statutory
obligation on a public authority will often be found to entitle members of the
community to litigate in respect of it.
But the matter depends upon a consideration of the particular
statute. In Adamson v Edinburgh Street
Tramways Co two private individuals were held to be entitled to require a
tramways company to carry out their statutory duty to install a passing place
in the layout of a double line of tram rails where the footpath was less than a
stated distance from the nearest rail. Although
the local authority and others had a right to complain, it was held that that
did not exclude the right of the petitioners to do so. As members of the public they had a right to
use the road. It is to be noticed that
they had a particular interest in the matter as being omnibus and cab
proprietors, but that did not seem to be relied upon as critical. Where a statute does not give a right of
challenge to the public generally, it may give a right to particular persons or
classes of people. In Kershaw v City of Glasgow District Council it was held that a statutory
provision which bound the local authority in considering tenders for certain
catering work not to act in a manner likely to have the effect of distorting
competition had been intended to protect third party tenderers and did not give
any title to sue to the catering manager of the authority's own catering unit
which had been operating as a direct labour organisation. But the ambit of the persons entitled to sue
may extend beyond those who may be benefited by the public service. It has been held that performance of a
statutory duty to lay main sealers to serve a private housing development can
be enforced by the developer of the housing site."
[222] Reference was made in that regard to the case of Docherty.
[223] It was significant that in order to consider whether title and
interest arose, one had to look at the particular statutes concerned.
[224] In relation to the duties referred to in paragraphs 3(A)(1)
and 3(A)(2) of the petition, where declarators were sought under the Sewerage
(Scotland) Act 1968, he submitted that no such duties existed. It might be a matter of relevancy but as a
starting point there had to be duties owed to a member of the public for title
and interest to exist and that concept of a duty being owed to a member of the
public did not exist.
[225] Paragraph 3 of the petition referred only to the second
respondents, but the pleas-in-law applied to both and again Mr Gale submitted
that there was no duty on the first respondents in terms of section 2 of
the 1968 Act.
[226] As far as the Roads Act were concerned, reference had been made
to section 31 thereof.
[227] He repeated that that was simply an empowering provision and did
not contain any obligation to do anything.
The rationale behind the provision, which replaced section 10 of
the Roads (Scotland)
Act 1970 was that with the increasing use of roads and changes in road building
technology, there would be a large area of impervious surfaces shedding water
and roads authorities were empowered to provide effective drainage systems. If
they did they had a continuing obligation under section 31(1)(c) to scour,
cleanse and keep open all drains etc.
[228] Mr Anderson appeared to be asserting that as roads authority
the first respondents had some obligation to create road drains and a
declarator was sought under paragraph 3(C)(2) of the petition that they were
not entitled to maintain a policy that they were entitled to allow other
parties to feed their surface water into road drains created under statute by
them as roads authority and that their statement that they had no liability to
exclude such water was ultra vires et separatim unlawful.
[229] Reference was also made to paragraph 4(F) which contained
the supporting averments.
[230] Mr Gale said that there was no duty to inspect or maintain
road drains contained in the Act.
[231] Paragraph 4(F) referred to "the residual liability" and
again that was meaningless.
[232] Reference was made to certain of the duties having been
transferred but, which ones were being referred to?
[233] The pleas were confusing.
[234] In any event, as he had said, section 31 was an enabling
provision and did not confer on the petitioner any entitlement to enforce it.
[235] He was not at all clear what it was that the petitioner was
saying was the duty owed to her as a member of the public or council tax payer
as far as the road authority were concerned.
Was it a duty to inspect and maintain the drains or to do something
positive? Why were there references in
4(F) to the second respondents? The
pleadings were difficult to understand.
[236] Again that might be a matter of relevancy but one had to define
the obligation in terms of the statute in order to show title and interest and
there was no clear indication of what it was.
[237] Lastly, Mr Gale referred to the question of any breaches of
duty by the first respondents as planning authority.
[238] The answers to the Minute of Amendment referred to the 1997
Act. Before that the primary legislation
was the 1972 Act.
[239] There was no clear indication in the pleadings as to the
development in respect of which it was said there had been a failure on the
part of the respondents and planning authority.
Mr Gale then referred to Mr Anderson's first Note of Argument
at page 33 in relation to his submissions on the facts.
[240] The first fact alleged was that:
"Shetland
Islands Council have adopted a policy of not consulting Scottish Water (or
their statutory predecessors) as regards the treatment of surface water
generally in relation to any applications for planning permission in Shetland."
[241] Mr Gale submitted that this was factually incorrect and it
was also contrary to what was said in the pleadings at page 15. Was it being said that the application by
Nicolson Bros, referred to at page 15, represented an exception to the
general rule, or was it an example of the generality in which case the argument
was inconsistent.
[242] There was no declarator sought seeking condemnation of this
policy which was said to be unlawful in the Note of Argument and which was not
in any event consistent with the pleadings.
[243] Beyond that, when one sought to identify the statutory duties
owed to members of the public, one was entitled to know what the statutory
duties were. One could not know that
without knowing which statutory regime was in place at the time of the
applications and which non-statutory regime.
Without knowing that, one could not look at the terms of the
statute. The planning statutes
themselves contained over 200 sections.
Which of the sections were said to have been breached.
[244] Mr Gale commented on the case of Morrison to which I have already referred.
[245] He pointed out that in his Opinion at page 893 the Lord
Ordinary said the following:
"It is certainly
logical that no one should be allowed to sue an action unless the contract or
property right sought to be enforced has been duly transferred to him and is
vested in his person. In general, any
injustice which this rule of law might operate is obviated by the farther rule
that the person who has the beneficial interest may compel the person who has
the formal title to lend his name as pursuer on receiving security against
expenses, or, alternatively, may in certain cases demand an absolute
assignation of his own share of the alleged asset."
In other words, vesting was not
sufficient. There had also to be a
transfer.
[246] Any injustice, as the Lord Ordinary had said, was obviated by the
rule that the person who had the beneficial interest could compel the person
with the formal title to lend his name.
[247] The small claims action, or at least one of them, was raised in
the name of the executor. It was said
there that title "vests in the executor".
[248] There was no question but that the petitioner was not infeft and
short of that she had no title to litigate in respect of damage to the
property. That was a complete answer to
Mr Anderson's point.
[249] I asked Mr Gale whether it was necessary to be infeft before
one could take action to prevent or seek damages for damage to the fabric of
property. I queried whether there was
any parallel in the law of landlord and tenant.
Mr Gale's position was that the petitioner was not seeking damages qua occupier of the property, but on the
basis of her title.
[250] He drew my attention to the Stair
Memorial Encyclopaedia vol.13 at paragraphs 289 and 290.
[251] Included in paragraph 290 are the following comments:
"A tenant comes
in place of his landlord as occupier of the subjects, and his title to sue in
any particular matter depends on his interest.
He may sue for declarator, damages, interdict, removing or restitution
to protect his interests, because he is the assignee of his landlord's title so
far as necessary for his own protection in the subjects let. A tenant, however, comes in place of his landlord
only as occupier, and cannot acquire a right of servitude in favour of the
subjects let to him. Landlord and tenant
may both sue together in the same action, if it involves the rights and
interests of both."
[252] He also referred me to the case of Fleming & Others v Gemmill
& Others 1908 S.C. 340 where a tenant sought an interdict to prevent
pollution of a stream which flowed through his lands and at which his cattle
were watered. The Lord President said
the following at pages 347 to 348:
"But I propose
to say a word or two upon the questions of law that were raised in a very
anxious and good argument at the bar.
First, the defenders raised the question of the title of the
pursuers. They said that even admitting
that there was pollution which rendered the stream less pure than it was before,
and of which a proprietor could have complained, the right of a tenant was
somewhat less; that a tenant could not
complain of the mere deterioration of the quality of the water, but must raise
the question to something equivalent to nuisance; and that the pursuer's case has fallen short
of the proof which was necessary for that.
I do not think that there is any difference in the quality of the title,
if I may use such an expression, of the proprietor and of the tenant in this
matter. It seems to me that the tenant
is the assignee of the landlord's title, by the mere force of the lease, to every
extent that it is necessary to give it to him for his protection in the lease
and inasmuch as the subjects let include a stream, one of the natural uses of
which is to water cattle at it, it seems to me that the tenant has every right
which the landlord had to maintain the purity of the stream. In other words, he is the assignee of the
landlord's title insofar as it is necessary for his own protection in the
subjects let."
[253] Thus the title of a tenant to sue was dependent on the nature of
his interest. That was not the position
we were in here.
[254] In his submission all four grounds upon which Mr Anderson
relied were misconceived and he invited me to sustain the first plea-in-law for
the first respondent as to title and interest and dismiss the petition.
Submissions for the second respondents
[255] Mr McBrearty indicated
that there was much common ground between him and Mr Gale. Essentially he said that the first hearing
was to be a debate on the relevancy of the petitioner's pleadings. It was correct, as Mr Anderson had said,
that there was a reluctance on the part of the respondents to agree certain factual
matters. That was necessary due to the
state of the Record. There were also
issues of fact which were likely to be highly contentious.
[256] He was going to seek dismissal of the petition on the basis of no
title to sue and also on the basis of relevancy.
[257] His intention was to focus on the basis of the petition so far as
directed at the second respondents.
[258] The first focus was an alleged failure on their part to comply
with a statutory duty under section 1 of the Sewerage (Scotland)
Act 1968 to provide sustainable drainage.
The orders sought in relation to that were to be found at
paragraphs 3(A)(1), (2) and (3) of the petition.
[259] Damages followed on from that alleged failure at
paragraph 3(D).
[260] The averments in support of it were to be found at
paragraphs 4(A), 4(E), 5(2) and 5(3).
[261] The second basis for the petitioner's case against the second
respondents was an alleged breach of section 2 of the 1968 Act. He understood that that related to a failure
to maintain existing pipework.
[262] The order sought in relation to that was to be found at
paragraph 3(B) and it was supported by averments at 4(D) and 5(4).
Turning to 5(4),he agreed that in
about 1990 Shetland Islands Council decided to construct a pipeline sewer
running along East Voe and that had been constructed.
[263] The only issue which was raised about section 2 was contained
in the following sentence:
"As a result of
a combination of the disturbance of the ground to install said sewer and the
vastly increased volumes of water coming down, all of that ground has now been
eroded by the excessive volumes of water and the sewer pipe is hanging exposed
in the air where it constitutes an environmental hazard."
[264] Mr Gale had highlighted the fact that in some parts of the
petition the duties were averred to as being incumbent on the first, sometimes
the second and sometimes both respondents.
He accepted that Scottish Water were the party on whom any duties under
the 1968 Act were incumbent, in principle.
Conversely, the second respondents were not responsible for any duties
owed under the Roads (Scotland)
Act. That was the responsibility of the
first respondents. In any event, there
was no specific order sought against the second respondents in relation to that
Act.
[265] As far as the alleged breaches of duty under the Town and Country
Planning Acts were concerned, the petition had to be read as directed against
the first respondent only.
[266] There were certain inconsistencies between the petition and the
Notes of Argument. On the one hand it
was said that Scottish Water were consulted about certain planning
applications, but as a matter of fact there was no order sought against the
second respondents over any alleged failures in the planning process.
[267] His remarks about title and interest would be confined to
sections 1 and 2 of the 1968 Act insofar as they related to the petitioner's
status as a member of the public and community charge/council tax payer.
[268] In the first place, however, he turned to the question of the
petitioner's title to the property and he adopted the arguments made by Mr
Gale.
[269] On the basis of the pleadings the petitioner had no heritable
title to the property. She had a
beneficial interest by virtue of her prior rights which could be enforced
against Mr Anderson as executor but, as matters stood, she had no
heritable right and could not enforce rights pertaining to the property against
a third party.
[270] Mr Gale had approached the matter from the point of view of
a heritable title. It might however be
approached from another direction. What
title does a beneficiary have when he is not yet infeft?
[271] In this regard he referred to page C88/1 of the Parliament House Book dealing with title
and interest, as follows:
[272] "A pursuer must have title and interest to sue. The pursuer must have title at the date of
bringing the action; if not, the lack of
it cannot subsequently be made good by assignation (Symington v Campbell (1894)
21 R. 434) or by retrocession (Bentley v
Macfarlane 1964 S.C. 76), though a qualified
title may be cleared or a title completed (Bentley,
above)."
[273] He submitted that the authorities referred to by Mr Anderson
did not apply here. One could not
retrospectively obtain title if there was no title at the beginning of an
action.
[274] The question of a beneficiary was looked at at page C89
under paragraph (D)(5).
[275] That was in the following terms:
"Where there is
a trustee, or an executor, a beneficiary cannot sue the estate's debtor; Hinton
& Co v Connell's Trs. (1883)
10 R. 1110; Morrison v Morrison's Executrix
1912 S.C. 892; though a special legatee
may sue if he makes the executor a defender:
Young v Ramage (1838) 16 S. 572, 578."
[276] In general terms a beneficiary did not have the right to sue a
debtor to an estate.
[277] The cases dealt with debts due to an estate prior to the death
and that differed from the current circumstances where there was said to be
damage to the property, but a debt was said to be due to the estate in terms of
damages. There was no reason why that
should be treated any differently from the older cases. The damages claimed constituted a debt due to
the estate incurred when the beneficiary had not yet become the owner of the
property.
[278] He referred in more detail to Morrison. In that case one of the deceased's next of
kin sought to raise an action for the recovery of a debt due to the estate of
the deceased. The action was dismissed
on the ground that the pursuer had no title to sue, but the Inner House allowed
the executor to be sisted as a pursuer in substitution for the original
pursuer.
[279] Reference was made to the Lord Ordinary's opinion at
page 893 to the following effect:
"The first plea
in law for the defenders is to the effect that the pursuer has no title to
sue. In the ordinary case the title to
prosecute an action like the present one is vested in the executor as the
deceased's legal representative, and a creditor of the executor, including in
this description a beneficiary either under intestacy or under a will, has no title
to enforce a contract of co-partnery to which he was not a party. ..."
[280] At page 895 of the case the Lord President confirmed that
the Lord Ordinary's view was correct.
[281] Mr McBrearty did not go into the details of Hinton & Co but again submitted that
there was no difference between the debt due in these cases and the alleged
"debt" due to the petitioner.
[282] He referred to the opinion of Lord Adams in Symington v Campbell which I have already mentioned.
[283] In the present case there had simply been no passing of title to
the petitioner.
[284] It was curious that the Small Claims had been raised in the name
of the executor, but in the Court of Session the action had been raised in the
name of his mother.
[285] In particular cases there might be more than one party with title
and interest to sue, but that was not the case here.
[286] He then turned to the question of actio popularis.
[287] In relation to the alleged failure to act by the second
respondents, Mr McBrearty submitted that this was not an example of an actio popularis. That was concerned with rights held in common
by the public as opposed to the right of an individual which other members of
the public might happen to have but which were not held in common.
[288] In this respect he referred to Clyde &
Edwards at page 386, paragraph 10.23 to the following effect:
"Certainly a
distinction has to be drawn between such matters of public right - that is, a
matter of common right in which every member of the public may participate with
everyone else - and matters of the rights of individuals which others may have
but which are not held in common."
[289] A matter of public right might, for example, be a question about
a public right of way and Adamson v Edinburgh Tramways was an example of
that.
[290] There were older cases containing similar examples, such as the
right to use the foreshore. If a body
interfered with a public right, then any member of the public could vindicate
it on behalf of the whole public.
[291] There might be other instances.
He referred to the case of Scottish
Old Peoples' Welfare Council, Petitioners 1987 S.L.T. 179.
[292] That concerned a circular about emergency cold weather
payments. Lord Clyde found that the
payments could be made to any member of the public subject to certain
conditions, so any member of the public would have title to sue if he could
show interest. The Council, however,
failed.
[293] The words actio popularis
were not used in that case but it was an example of the type of case where
members of the public had the right to sue.
[294] That was not the case here.
[295] Here the petitioner sought judicial review in relation to the performance
of statutory duties where she was concerned with damage to a particular
property. That was the nub of the
matter. Sections 1 and 2 of the
1968 Act imposed a duty which might be relevant to the public at large, but in
the circumstances averred it only related to the petitioner insofar as it
affected the property.
[296] This was not a failure in a duty which concerned all members of
the public. He came back to the quote
from Clyde & Edwards.
[297] The present circumstances fell into the latter category referred
to in that quote.
[298] An affected individual might seek to enforce his right in
relation to his own property but that was not a right in common held by the
public. One could envisage such rights
held by the public. He postulated the
example of a sewer bursting under the High Street, with smells and such like
oozing through manholes. If the second
respondents failed to deal with that, one could conceivably see a public right
of action enforceable by any member of the public. If only one person's property was affected by
it, then only that person could act.
[299] The situation was analogous to that where title and interest was
claimed as a community charge/council tax payer. Mr Anderson had referred to a number of
cases but there was a common theme in all of them, namely that they all related
to the use of public funds to which the whole public had contributed. They were concerned with the public pot.
[300] The case of Stirling County
Council for example related to a decision by magistrates to include certain
items of expenditure in fixing the general assessment for the year.
[301] Farquhar and Gill related to magistrates seeking to
include in estimates expenditure incurred in an unsuccessful promotion of a
provisional order and private bill in fixing the water rates for the current
year. In the case of IRC v National Federation of Small Businesses concern was expressed about
an arrangement to allow individuals to avoid payment of tax.
[302] This showed the common theme to which Mr McBrearty had
referred.
[303] The present case was about damage to a particular property and so
payment of council tax etc was not relevant.
The owners of other properties might have similar rights if they were
similarly affected, but the case was not concerned with public funds. The whole
issue came back round to whether the petitioner had title to the property.
[304] As far as res judicata
was concerned, he adopted Mr Gale's argument.
[305] Mr McBrearty also addressed the question of title to sue
arising from the petitioner's interest in the property.
[306] He suggested that the use of the word "vesting" was a red
herring. The question was, in what had
the petitioner been vested? It was plain
that it was a personal rather than a real right and the issue was whether that
was sufficient in the context of damage to property.
[307] As far as members of the public and council tax payers were
concerned, Mr Anderson had submitted that the duties under the 1968 Act
were owed to the public.
Mr McBrearty did not dispute that the 1968 Act gave rise to duties
owed to the public, but in dealing with questions of title and interest one had
to look at the context in which they were sought to be engaged. The petitioner sought to enforce a duty owed
to the public but only in respect of a property in which she claimed an interest. The focus therefore was on title and
interest. In an actio popularis every member of the public benefited if the pursuer
was successful. It was not just a
question of interest.
Submissions for the interested party
[308] At this point Mrs Hughes sought to intervene on behalf of
the interested party and Mr Anderson objected on the basis that since he
was not seeking any order against the interested party, Mrs Hughes could not
come in and argue about his title and interest to sue the respondents.
[309] At the By Order hearing Lord Mackay of Drumadoon had indicated to
Mrs Hughes that he was not expecting a third speech.
[310] Mrs Hughes drew attention to the fact that she had been
ordered to lodge a Note of Arguments by the interlocutor of 20 June. Her decision to enter appearance came from the
averments of the petitioners at paragraph 1. Furthermore, paragraph 6 suggested that the first
respondents might have some basis for retrospectively demanding a contribution
from the interested party.
[311] They had been called as defenders in the Small Claims actions and
although they had been assoilzied in relation to the first, the second one had
been sisted. There was a great deal of
concurrence between the pleadings in the current case and in the Small Claims
actions.
[312] Reference was made in the pleadings to certain admissions by the
interested party in the Small Claims.
These admissions were to be found in No.6/8 of process, but they were
subject to certain explanations. In
particular the interested party had sought to ask what applications were being
referred to.
[313] Mrs Hughes contended that she was entitled to speak to the
petition as a whole.
[314] Mr Gale helpfully intervened. In particular he pointed out that the
petitioner sought declarator that in granting planning applications made by the
interested party the local authority had failed in some way. If that declarator was granted then it might
have an impact on the interested party.
[315] In the circumstances he supported Mrs Hughes' right to
address me.
[316] I decided that there was force in what Mrs Hughes and
Mr Gale had said and I allowed her to address me.
[317] As it happened, her address was fairly brief.
[318] She submitted that there was no merit in the question of res judicata.
[319] Secondly, she offered no submissions about the question of title
and interest arising from the petitioner's being a member of the public and
paying taxes.
[320] Thirdly, as far as her interest in the property was concerned,
she adopted the submissions by counsel for the respondents and in particular
those relating to the case of Sharp and
Burnett's Trs.
[321] Her position was that the petitioner had to be infeft and that no
lesser right conferred right and title to sue.
[322] She referred to the affidavit from Carole Hope, which made reference
to section 8 of the 1964 Act.
[323] It was apparent from that section that the surviving spouse was
primarily entitled to the value of the interest and only when it was less than
ฃ130,000 was she entitled to the interest itself.
[324] She could compel the executor to convey the house to her, but it
was implicit that that had not yet been done.
Accordingly, she was not infeft and had no title and interest to
sue. Mrs Hughes submitted that
while the prior rights might crystallise at the point of death, nothing vested
until there was confirmation. That
settled the value of the property.
[325] I had some difficulty with that proposition since it seemed to me
that the value of property was whatever it was and confirmation merely made the
value clear for all concerned.
[326] In any event, the date of confirmation preceded the raising of
this action so it did not seem to me to be a matter of any significance.
[327] For the sake of completeness Mr Gale adopted the submissions
made by Mr McBrearty and Mrs Hughes.
Reply on behalf of the petitioner.
[328] Mr Anderson concentrated first of all on the suggestion that
the petitioner required to be infeft.
[329] Mr McBrearty had put his finger on the issue when dealing
with the case of Morrison. The Inner House had affirmed that the Lord
Ordinary was correct and he referred again to his Opinion at page 893,
where he said:
"It is certainly
logical that no one should be allowed to sue an action unless the contract or
property right sought to be enforced has been duly transferred to him and is
vested in his person."
[330] In Mr Anderson's submission that was the key to the whole
matter. If the petitioner was vested
then she had title to sue.
[331] Could it be said that she was vested?
[332] It was possible to distinguish an expectancy which a beneficiary
might have, although in the case of Rae
v Meek (1888) 15 R. 1033, 1889 16 R.
(H.L.) 33 beneficiaries were held entitled to sue even though their rights were
contingent. They had plainly less than a
vested title.
[333] In discussing what was meant by "vested" Mr Anderson drew my
attention to a passage in Chapter 7.5 of Principles of Scottish Private Law by Professor David M Walker (4th
ed.) entitled Vesting of Interests in
Succession.
[334] What was said in the first page of that chapter was the
following:
"An interest,
whether on intestacy or under a will, vests when the person entitled thereto
acquires full legal right of property in the share of estate or subjects of
bequest, so that they become part of his estate, disposal by him inter vivos or mortis causa, attachable by his creditors, and passing on his death
to his executor. A vested interest is
accordingly distinct from a contingent interest, an expectancy or a spes successionis. Vesting does not necessarily depend on actual
possession, enjoyment, or payment, as these may be held up by prior interests
such as a liferent, nor is it necessarily postponed by the existence of a
trust. In some contexts, however, the
word may connote vesting in possession. No distinction in principle is drawn
between gifts of heritable and gifts of moveable rights in respect of
vesting. Different parts of an estate
may vest at different times. Statutory prior rights exigible on intestacy vest
on the predeceasing spouse's death, provided that spouse has left no will
disposing of the whole of his or her estate.
The vesting is possibly subject to defeasance in the event of a will
disposing of the whole estate being subsequently found within the long
prescriptive period."
[335] In his submission, this was authority for the view that the
statutory prior rights vested in the petitioner on the death of Major
Anderson. She had acquired an interest
that had become part of her estate, which could be left in her will or attached
by her creditors and which passed on her death.
There was no requirement for infeftment.
If she did not become infeft and she died leaving the property to be
sold, title could be deducted through the two confirmations and the
docquet. There was no requirement for
surviving spouses to become infeft and many of them did not. The petitioner had become vested in the prior
rights to the house and had therefore acquired the full legal right to the
property. As the Lord Ordinary said in Morrison, she was vested in the property
and therefore she had title and interest to sue.
[336] The consequence of following the argument of his opponents was
that if infeftment never took place then the person concerned would never have
title to sue and that could not be right.
The arguments were wrong in law and had set the bar too high. Infeftment was not a requirement for title
and interest to sue. Looking at
infeftment involved getting hung up on unnecessary technicalities. I should ask myself whether the petitioner
had a recognised interest which the law of Scotland
allowed and which she was entitled to defend.
[337] He referred again to Rae v
Meek and also to the case of Lanarkshire Health Board v Banafaa 1987 S.L.T. 229.
[338] The latter, however, was a case on its own facts and I did not
find it particularly helpful.
[339] In short, Mr Anderson's submissions were that in order to
have title and interest to sue the petitioner had to have vested in her some
right recognised by the law of Scotland.
Prior rights had vested in her at her spouse's death and if infeftment
was necessary before there could be title and interest then it was a step too
far. The confirmation with the docquet
on it was a perfectly valid link in title and was recognised by the law of Scotland. If an issue came up involving a person who
was not yet infeft, it was ludicrous to expect her to wait several months to
become infeft before she could do anything about it.
[340] As far as the other points were concerned, Mr Anderson
submitted that the best way to proceed would be to go through the pleadings and
deal with the points as they arose.
[341] I agreed with this procedure.
[342] Before looking at the pleadings I was invited to look at a number
of productions.
[343] No.6/7 showed photographs of the area and the bridge referred to
in the pleadings could be seen.
[344] No.6/11 was a copy of the Scalloway proposal map and Trondra
could be seen on it. The line to the
right of it was the bridge. East
Voe was on the other side.
[345] Blackness Quay had a mass of housing above it which was
Scalloway. The bridge had opened up
Trondra, which was an island before.
[346] No.6/12 was an ordinance survey map showing housing in the area
to which the petition related. The
bridge was on the left-hand side. The
Sea Chest was mapped on it.
[347] It was beneath the road and next to the sea, whereas the houses
were above the road and on a hill.
[348] No.6/14 was a photograph in which the Sea Chest could be
seen. It was the most low lying
property.
[349] No.6/15 showed the bridge and the general topography sloping from
right to left and top to bottom, ending up at the Sea Chest.
[350] No.6/16 was another photograph showing the extent of the
development.
[351] No.6/20 was described as Advice Note 3, which was issued by
Shetland Islands Council.
[352] It referred, amongst other things, to sustainable drainage
systems or SuDS.
[353] It said the following:
"Your planning
application forms will ask you to provide details of your methods of surface
water disposal. SuDS is a collective
term for different types of drainage structures which replicate the capacity of
undeveloped ground to infiltrate, store or attenuate (slow down) the flow of
surface water within the site. The aim
is to minimise the speed and quantity of surface water draining off into a
watercourse, this should minimise the need for large deep ditches within
development areas."
[354] There then followed a description of certain methods which could
be used.
[355] Over the page the question was posed, "Why sustainable
drainage?" There followed a diagram
indicating the changes when an area was subject to development.
[356] It was said that the surface water flow was much greater and much
faster on a developed site with the result that the water flowed into the watercourse
at a much greater rate with minimal water flowing through the soil. This could have a negative impact on the
surrounding environment for a number of reasons which were set out.
[357] These were as follows:
"The drainage
problem is transferred downstream leading to a water surge effect and the
potential for overloaded burns/ditches.
The scouring
effect of overload or flash flooding erodes burnbanks and beds, reducing the
flow capacity of burns. This also has a
negative impact on wildlife living and growing in the burns/ditches.
Many
burns/ditches are culverted (flow through pipes underground). When subject to periods of heavy rainfall
some culverts may become overloaded and increase the likelihood of flooding.
Water supplies
will be contaminated with pollution carried by the run-off from roofs, roads
and car parks. The pollutants may
include a variety of sediments, hydrocarbons, metals, salts and pathogens
harmful to people and wildlife."
[358] Remembering the advice given and relating that to the
photographs, one could see how the construction of the houses had affected the
flow of water, said Mr Anderson.
[359] It was a reasonable inference that as indicated in the advice
note, when property was developed one eliminated the ability of the undeveloped
land to hold the water and deal with it.
[360] I was then referred to No.6/21 of process, Advice
Note 4. That said inter alia that -
"Flooding can
also be caused by water run-off from hills;
development further up the hill can worsen this."
[361] Mr Anderson then referred to No.6/22 of process, a Guide to Farm Diversification and Planning
Permission in Scotland, apparently issued by the Scottish Executive in
2003.
[362] At page 3 thereof the following appeared:
"When designing
any diversification project you should consider the following:
ท
your local community, particularly your
neighbours;
ท
landscape, wildlife habitats and historic
features; and
ท
traffic, water, sewerage, noise and pollution
impacts."
No.6/24 was a
photograph of the culvert running underneath the B9704 road above the Sea
Chest.
[363] No.6/25 was a photograph showing the access road to the Sea
Chest. The concrete structure just
behind the gate was the other end of the culvert. Running from the gate along the road was a
concrete structure which aligned a drain.
Water had come down that to the property and had eroded an area of
ground at the other end of it. This had
been the subject of the first Small Claims.
[364] No.6/26 was a disposition by trustees for Nicolson Bros in favour
of Shetland Islands Council dated 28 November and registered on
8 December 1995. Nicolson Bros were
the landowners of virtually the whole of the East Voe
and had disponed certain parts of it to other parties. The Sea Chest was shown on the plan attached
to the disposition. The broken line
heading generally north to south was the B9074 road.
[365] The two lines running across the plan diagonally represented the
access to the Sea Chest and the red box on the plan was the area disponed.
[366] A broken u-shaped line to the right of the red box was the
boundary wall representing the limits of the Sea Chest property. The drain shown in the photograph exited in
the u-bend directly into the red box.
[367] In other words, for water to get from the hills to the sea it
went down the drain then into the rectangle and then across another small piece
of ground belonging to Nicolson Bros and then into the sea.
[368] I was told that when Shetland Islands Council had the
responsibility for sewerage this plot of ground was to contain a pumping
station. After the transfer to NOSWA ,
or North of Scotland Water Authority, they bought another plot of ground from
Nicolson Bros and constructed a pumping station on that. Responsibility for the red box was also
transferred to NOSWA and then became the responsibility of Shetland Water. However the red box was no longer there,
having been eroded away.
[369] No.6/27 was a copy of a plan showing the sewer pipeline
constructed by NOSWA starting at A30 on the bottom of the plan and running past
the houses shown thereon. The Sea Chest
pumping station was shown on the left at the top of the plan.
[370] This was a pipe which fulfilled the statutory duties under
section 1 in relation to foul water.
[371] No.6/28 was a disposition by the trustees for Nicolson Bros to
NOSWA dated 1 July 1997
and registered 4 August 1997. The sewer runs through the rectangular box shown
on the plan attached thereto to get to the pumping station for which Scottish
Water were now responsible.
[372] No.6/29 was a photograph of the B9074 road showing the drain and
in the centre of it a piece of pipe running from a property which was one of
the houses on the left.
[373] No.6/30 was a photograph of the house. It appeared that the blue door was the same
blue door as shown in the preceding photograph.
The pipe in the previous photograph goes off to the right of this
photograph.
[374] No.6/31 showed the pipe in No.6/30. It also showed how water ran down the hill. The Sea Chest could just be seen to the left.
[375] No.6/32 was a response to a consultation from someone called
Colin Smith at the Roads Drainage Department.
It was sent by him on 22 August
2006 and related to the proposed erection of twenty two dwellings
on East Voe, Scalloway by Hjaltland Housing
Association. I was told that that was at
the north end of the East Voe. These houses were not associated with the Sea
Chest.
[376] The plan attached to the document showed some of the twenty two
houses and underneath it one could see a reference to hedging and an indication
that the existing ditch was to be converted into swale (a sophisticated ditch).
There was also an area to be developed
into ponds/holding basin forming part of the sustainable surface water drainage
system.
[377] The B9074 road was underneath that and then the sea. The letters MLWS stood for mean low water
springs.
[378] Mr Anderson submitted that what could be seen there was a
sustainable surface water drainage system which had been put in place for the
development of these twenty two houses.
[379] This drainage system was in accordance with accepted requirements
under the Sewerage Act and the planning system.
The petitioner was asking whether there was such a system for the houses
above the Sea Chest.
[380] In the previous three pages of that document there appeared to be
certain criticisms by Mr Smith, followed by an email of 20 October
2006 indicating that the project was acceptable.
[381] According to Mr Anderson neither NOSWA nor Scottish Water
were involved in this process. I asked
him how I could know that, since all I had was one document. His position was that under the Freedom of
Information Act Scottish Water were asked whether they had any record of
consultations by Shetland Islands Council in relation to the construction of
new houses in the East Voe, and they had replied that
they had no such record. On that basis
the petition was raised. In their
answers they had not said that they were involved in the consultation and they
had not produced any documentation about it.
[382] Mr Anderson then turned to No.6/1 of process, which was the
transfer scheme and indicated that the Sea Chest pumping station was
transferred to NOSWA by virtue of Clauses 2.1 and 3.1 and the station
itself was shown on page 21 as being one of the properties transferred
under reference No.S300030.
[383] He then turned to the question of title and interest under
reference to section 1 of the Sewerage (Scotland)
Act.
[384] He agreed that one ought to look at the statute in question to
see whether it imposed any public duties.
[385] In his submission, the 1968 Act was a consolidating statute and he
referred to his Note of Argument at page 6.
[386] He took me through some of the history of the legislation, the
background being that the Victorians had wished to improve public health. It
was noteworthy that the legislation was mandatory subject to the caveat that
the provision of sewers should only be at reasonable cost (section 1(3)).
[387] This was a point which was made in Docherty, where Lord President Clyde inter alia had said the following:
"The cesspool
provision is obviously a temporary expedient to save the expense of the
construction of a branch sewer until such time as a sufficient number of houses
have been constructed to justify a sewer of the area to be effectually
drained."
[388] Against that background it was hard to see how the duty could be
anything other than one owed to the public.
Mr Gale and the others seemed to be exercised by what was being
referred to in the petition. The
petition had been drafted the way it was because if only one house had been
built on the hill then one could not expect a public sewer to be put in but
when "a sufficient number of houses had been erected" then a member of the
public affected by it could start demanding a sewer. The point of the petition was that the
responsibilities lay first on Shetland Islands Council, then NOSWA, and then
Scottish Water. Every time a new house
was put on the hill, what consideration was being given to providing a public
sewer? Shetland Islands Council only
provided a sewer for foul water, but not for surface water or trade
effluent.
[389] Mr Anderson submitted
that Shetland Islands Council, NOSWA and Scottish Water were all responsible
for the sewers over a period. Had he not
brought both respondents into the process, then there might be an argument that
all parties were not called or that the responsibility for a development lay
with a predecessor.
[390] He reminded me of Rule of Court 58.9 in relation to judicial
review. That was to the effect that the
Lord Ordinary might require a party to lodge such documents relating to the
petition as he specified. It was often
found that it could be difficult to obtain information from parties.
[391] An application had been made to Shetland Islands Council to
produce all planning applications for the area over the years but they had
refused to provide any information.
[392] He then referred to the Local Government (Scotland) Act 1994
which amended the Sewerage (Scotland) Act by allowing for agreements between
the public provider and private providers and then drew my attention to an
article in The Times of 19 November 2007 in which the Chief Executive for
Scottish Water had made certain remarks about its profitability but I regret I
could not see any relevance in this. According
to Mr Anderson it was the court's function to enforce the law and the basic
duties under section 1 still subsisted.
The public authorities were protected by the caveat about reasonable
cost and officious bystanders could not interfere because they required an
interest. Mrs Anderson was a person
who was affected by the failures in duty, although she was not the only
one.
[393] Provision for the disposal of sewage was one of the main public
duties owed and the petitioner had clearly demonstrated title and interest.
[394] Reference was then made to section 2. The sewerage authorities were entitled to put
in a sewer and did not require to buy a piece of ground or have any right of
access to the ground to do it. However,
once it was put in they had to maintain it.
[395] A sewer covered all of its component parts so that if the
relevant authority chose to bury a pipe to protect it and part of the ground
was eroded then they would not be doing their public duty if they did not put
that right.
[396] In this case a pipe had been put in, the ground had eroded and
was causing an environmental hazard. The
petitioner was being affected by that.
[397] I have to say that the averments about the effect of this
environmental hazard on the petitioner are sparse indeed.
[398] In short, however, section 1 and section 2 both fell to
be treated the same way.
[399] Mr Anderson then turned to the Roads (Scotland)
Act 1984. His submissions on that
commenced at page 21 of his Note of Argument, which reflected the
averments in the petition.
[400] Again he said it was clear that the duties therein were owed to
the public and he referred to the case of Adamson.
[401] It was clear from section 31 that the Roads Authority had a
discretion to lay drains but once they had done so it was their responsibility
to scour, cleanse and keep them open.
This amounted to a duty to maintain.
[402] He had not found any Scottish authority as to what that meant in
practice. He referred me to a passage in
an English textbook called Garner's Law
of Sewers and Drains, 9th ed., by S H Bailey.
[403] In particular he referred me to page 164 thereof to the
following effect:
"In this chapter
the expression 'highway drain' is used as meaning any conduit or ditch
(artificial or natural) which takes off or conveys the surface water from a
highway maintainable at the public expense.
Since, in this context, there are no legal consequences attaching to the
distinction, it is unnecessary to distinguish between a sewer and a drain. The
drains which take off the surface water from a highway - which 'belong' to the
highway in question - and which serve no other purpose will normally be vested
in the highway authority as such and there will in most cases be no question of
them being vested in the sewerage undertaker as public sewers under
section 179 of the Water Industry Act 1991. Where, however, a highway drain also contains
foul or surface water from premises in the vicinity of the highway, or where it
is desired to connect the drains of such premises to a highway drain, the
status of the latter may well be very important; in particular it will have to
be ascertained whether or not the drain is a public sewer."
I am not entirely sure of the relevance
of that passage, but nonetheless Mr Anderson submitted that what was
described therein was what had happened here.
Instead of a system of sustainable drainage being provided for twenty
one new houses, all surface water was being fed into the roadside drain. The petitioner claimed that there was no
legal authority for that to happen and that if Shetland Islands Council were
maintaining the drains they would have noticed that and objected to it. The drains could not be used as a public
sewer. The petitioner was sitting in a
property affected by this. She paid
council tax for sewers and roads and was getting either no service in terms of
sewers, or a disservice in terms of the drains being unlawfully used.
[404] She therefore had both title and interest to sue.
[405] As far as planning was concerned, Mr Anderson endorsed what
Mr Gale had said about planning being an evolving concept. The planning aspects founded on by the
petitioner did not stem from any particular part of the legislation but rather
from other parts of the evolving planning process. Two parts in particular were involved.
[406] The first was the Town and Country Planning General Development
Order referred to in the petition and which required the local authority as
planning authority to consult the water and sewerage department about planning
applications.
[407] The other document was the Statement of Planning Practice No.7,
drawing to the attention of planning authorities that surface water can be a
hazard and should be a material
consideration.
[408] He also referred to Advice Note No.3 which spelled out the
threat of surface water. The case made
by the petitioner was as simple as this.
When each of the twenty one houses was being constructed subject to
planning permission was the relevant water authority consulted and was the
surface water consideration set out in SPP 7 and Advice Note No.3
taken into account? The only person who
had responded to that was the interested party.
[409] They indicated that when they made the original application they
consulted with the responsible water authority and no objection was taken. That was probably true because what was
proposed was a septic tank which was perfectly adequate. It all went wrong because when the sewer was
put in, confined to foul water, all the surface water was cast off and went
into the road drain.
[410] The local authority were under a duty to consult and consider
questions such as this and this duty was clearly owed to the public as a
whole. The planning authority were there
to protect the public interest and their duties were owed to the public. Not every member of the public could enforce
them because not each of them was affected.
[412] The petitioner however was affected and had title and interest to
sue.
[413] As far as the specification in the pleadings was concerned
Mr Anderson referred me to the case of City
Cabs (Edinburgh) v City of Edinburgh
District Council 1988 S.L.T. 184 and Mecca
Bookmakers (Scotland) Ltd v East
Lothian District Licensing Board 1988 S.L.T. 520.
[414] In these cases it was observed by Lord Cullen and Lord Jauncey
respectively that, in proceedings for judicial review, pleadings could be
construed more liberally than in ordinary actions.
[415] I paused to remark that the pleadings in any case will
nonetheless require to be considered in its own context.
[416] Mr Anderson submitted that because of the nature of judicial
review and the difficulty in obtaining information from recalcitrant local
authorities, pleadings ought not to be looked at in as exacting a manner as in
ordinary actions.
[417] For Mr Gale to direct his attention to the use of the word
"development" and ask what that meant went too far. It was clear that the petitioner was
referring to the twenty two houses which did not exist before.
[418] That, though, begs the question "Before what?"
[419] The petitioner had clearly been affected by the breaches of the
planning regime and had clearly title and interest to sue.
[420] Furthermore, the planning authorities should have looked at the question
of surface water more rigorously than under section 1 of the Sewerage Act.
[421] Finally, Mr Anderson returned to the question of absolute
interest in the property. He indicated
that Scots law distinguished between a position where there was no title at all
and one where there was a good title "at bottom" which could be purified. The respondents' position was that nothing
short of infeftment would do.
[422] The petitioner's position was that vesting was the test. 99.99% of executors were never infeft, using
confirmation as a link in title. The law
of Scotland
allowed executors to raise actions but did not allow extract until confirmation
was obtained.
[423] Confirmation was nothing more than vesting and he referred to
section 14 of the Succession (Scotland) Act 1964 which provided that
confirmation vested the estate in the executor for the purposes of
administration.
[424] In Mr Anderson's submission that squared the circle. He accepted that the cases of Sharp and Burnett's Trs. established that one needed to be infeft for full
ownership.
[425] However one did not need to be a full owner to have title to
sue. The question of vesting of prior
rights under section 8 of the 1964 Act was an incredibly complex area of
law, but Professor Walker, as he had indicated, was of opinion that these
rights vested in the surviving spouse on the death of the other spouse.
[426] Some authors saw that as a right in rem short of full ownership and others had their own
description.
[427] Mr Anderson drew a distinction between a general beneficiary
who had to wait and see what was available after the payment of debts etc and
who had only a personal right to demand his share and a surviving spouse whose
prior vested in her on her spouse's death if Professor Walker was right. If vesting was the test, as had been pointed
out in Morrison, then the surviving
spouse had title to sue. At all events
she had title at bottom for the purposes of this argument.
[428] It was perfectly in order for executors to raise Small Claims
after confirmation because they were all for small sums of money and for
emergency repairs only as had happened in this case.
[429] On the other hand, for a larger matter which might take years to
resolve, it was appropriate for the person with the interest in the property, viz. the petitioner, to take such action
as she thought fit.
[430] If I held otherwise it would be surprising. Confirmation was all that was required for
the house to be transferred and the executors need not ever be infeft
themselves. Most executors could not
raise a petition for judicial review because they simply could not afford
it.
[431] The petitioner clearly had an absolute interest and that gave her
title to sue.
[432] Therefore, on all these grounds, Mr Anderson invited me to
repel the preliminary plea. If he only
succeeded in one of them, that would suffice.
Submissions on relevancy for the first respondents
[433] At this point I invited Mr Gale to address me on the
question of the relevancy of the pleadings.
[434] He accepted that in the context of judicial review there was a
relaxation of the rules of pleading but adherence to a particular form of
petition was mandatory under the Rules of Court and in any event a respondent
facing averments and the seeking of remedies should be given coherent, sensible
and proper notice of the case against him.
[435] He turned to look again at the orders sought and started with
Nos.3(A)(1) and (2). As I have
indicated, these were, first, for declarator that the respondents were under
certain duties in terms of section 1(1) of the Sewerage (Scotland) Act
1968 to provide sewers or drains that would effectually drain the area and that
they had omitted or failed to do so and, secondly, that the respondents were
not entitled to maintain a policy that they owed no duties in that regard etc.
[436] Mr Gale said that he had wondered whether there was a
drafting error in that these should be directed against the second respondents,
but the averments did not suggest that it was an error, nor did
Mr Anderson's submissions. The
first remedy sought was a declarator that the respondents "are" under a duty to
provide sewers etc. that "will" effectually drain the area and accordingly was
present and prospective. In other words
it was said that the first respondents were currently under the duty.
[437] No.3(A)(2) was similar.
[438] Mr Anderson's position was that he was still seeking these
orders against the first respondents because at one time they had owed the
statutory duties under the Act and to that end he had gone through some of the
legislative history and background.
[439] This argument was entirely misconceived however. It was plain from section 1(1) that the
obligation was incumbent only on the second respondents. The declarators sought were accordingly
meaningless.
[440] It was neither necessary nor helpful to go through an analysis of
the previous legislative position and an example of where that had been
disapproved could be found in the case of Ross
v The Lord Advocate 1986 S.C. (H.L.)
70 in the speech of Lord Keith of Kinkel at page 113.
[441] What was under consideration was the position here and now.
[442] It could not be any clearer from the Act that it was the duty of
the second respondents to comply with it and not the first.
[443] Mr Gale then drew my attention to the mechanisms of the
transfer under section 91 of the Local Government (Scotland)
Act 1994.
[444] I need not go into all the details of that, but suffice it to say
that No 6/1 of process was a scheme entered into in terms of that Act and under
which the pumping station was transferred to NOSWA from Shetland Islands
Council with effect from 1 April
1996.
[445] In relation to the Act he drew my attention to
section 91(1), (2) and (4)(c).
[446] In relation to the scheme he drew my attention to
paragraphs 1.1.5, 1.1.6, 1.1.17, 1.1.18, 1.1.24, 2.1, 2.2, 3.1 and 3.2.
[447] In all the circumstances the orders sought under 3(A)(1) and
3(A)(2) were entirely misconceived in terms of the statute, there being no liability
on the part of the first respondents.
Therefore no declarators could be pronounced.
[448] He understood that the duties which Mr Anderson was saying
were imposed on the first respondents under section 1(1) of the 1968 Act
were perhaps reflective of a past legislative history and therefore, notwithstanding
that there was no statutory duty on the first respondents at present, he was
submitting that the court could find that there still was such a duty because
there had been one once, but that was fanciful.
If that was what was being said, then there followed an inconsistency in
connection with section 2 of that Act.
That related to a duty of inspection and maintenance. Orders in connection with that were only
being sought against the second respondents but why not the first, if
Mr Anderson was right about the continuing duty? If there was a continuing duty under
section 1 it was logical that there should be a continuing duty under
section 2.
[449] All of this indicated the confused nature of the pleadings.
[450] That was reflected in the pleas-in-law. In drafting a plea-in-law one normally asked
what the legal proposition was upon which one was relying to support the order
which was being sought.
[451] In this case no distinction was drawn in the pleas-in-law between
the respondents.
[452] This suggested that the duties under section 2 were also
owed by the first respondents.
[453] It was not appropriate that one should just try to infer what
might be meant.
[454] There was no reason why the pleas-in-law were directed against
the first respondents in relation to the Sewerage (Scotland)
Act 1968. Since there was no duty there
could be no order.
[455] Furthermore, there could be no damages.
[456] Mr Gale then turned to the Roads (Scotland)
Act 1984. He agreed with
Mr Anderson when he had said that section 31 of that was permissive
or empowering. The question whether a
roads authority constructed a drain was a matter for its discretion.
[457] The author of the comments to the section in Current Law had
suggested that the section laid down a duty to maintain drains, as
Mr Anderson had indicated, but when one went to the wording of the statute
itself there was no reference to maintenance.
[458] I have already referred to the terms of section 31.
[459] What was meant by scouring, cleansing and keeping open was, said
Mr Gale, that the drain itself would be kept clear.
[460] Therefore the general concept which one might take from the
commentator's remarks did not accord with what was in the Act itself.
[461] The question was whether section 31 conferred some title upon the
petitioner as a member of the public or a council tax payer to enforce duties
which were entirely permissive.
[462] Where duties were permissive it was difficult to see how they
could be enforced by the court.
[463] I asked Mr Gale about what I apprehended to be the
petitioner's case, namely that while the roads authority were permitted to lay
drains, they had no authority to allow other people to use them for the
disposal of their own surface water.
[464] Mr Gale said that the purpose of the drains was to drain the
road. If that meant that water which was
running off land above the level of the road as well as water coming from the
road itself was being taken away then so be it.
The purpose of the legislation was to protect the road, not to protect
subjects some distance away, which it was said were being damaged.
[465] If one looked at the generality of the public interest, that was
to protect the road and not other properties.
That was why authorities were given power to create drains.
[466] It might be that in some way the use of the road drain was part
of a wider problem amounting to nuisance.
There might well be a common law remedy and indeed that was the basis of
the Small Claims.
[467] He repeated that one had to look to the terms of the statute.
[468] Once again he said that its purpose was to protect the roadway
and that was what road drains were there for.
It did not confer on the petitioner some right as a member of the public
or a council tax payer to litigate about alleged damage to property.
[469] The remedy sought under the 1984 Act was irrelevant.
[470] It might be that other remedies were available, but the
petitioner was trying to use a particular statutory provision for a purpose for
which it was never intended and that made it artificial and irrelevant.
[471] He then looked at the order sought under 3(D)(2), namely a
declarator that as a result of the first respondents' failures to fulfil the
duties incumbent upon them to be expected from them as a reasonable and
competent planning authority, the petitioner had suffered loss and damage and
inconvenience. He noted that there was
no suggestion that loss and damage had arisen out of the breaches of the
Sewerage (Scotland)
Act or the Roads (Scotland)
Act, so the only damages which were being sought were those which were said to
have resulted from failures as a planning authority.
[472] The pleas-in-law did not help because they did not mention any
statutory or other duty imposed on the first respondents qua planning authority.
[473] They all related to breaches of the Sewerage and Roads Acts.
[474] Plea-in-law 10 related to statutory duties and was not consistent
with the orders sought under 3(D)(2) and (D)(3). It was only in relation to the alleged breach
of duties as a planning authority that loss was said to have been caused. Therefore there was nothing to link the claim
for damages with the alleged breaches of statute.
[475] There was no plea-in-law which related to 3(D)(2) because the
plea-in-law seeking damages referred to statutory duties.
[476] He then turned to look at what was said about the first
respondents as planning authority and that was contained in essence in
paragraph 5(2) of the petition at page 11.
[477] Mr Gale submitted that he was still unclear as to what the
"development" was which was being complained off. It was not clear when that development was
considered by the local authority and what the failures were in relation to
it. Planning was indeed an evolving
concept. An example of that was to be
found in one of the advice notes where it was stated that caution should be
exercised when building below the 5 metres contour line. In the past there had not been that level of
caution.
[478] Mr Gale's difficulty was that he did not know which
statutory failures were alleged to have occurred on the part of the first
respondents. He did not know what
development was being complained of.
Depending on the period which was being talked about, planning advice
and legislation might well have been different.
[479] There was a reference to the 1997 Act and to the general
development procedure order. But
nonetheless Mr Gale still did not know what statutory regime and what
planning advice regime were said to have been operative when the "errors" were
made.
[480] One also had to consider the difficult question of whether, when
there is a duty on a public authority, that duty gives rise to some form of
common law obligation. In the pleadings
there were some averments that no reasonable and competent planning authority
would have done X or Y. That seemed to
be taken from the general position that a planning authority was a statutory
body and that it had certain obligations simply because they were a public
body, but without reference to any particular statute. There had been some litigation about that in England,
for example in relation to education. If
that was being suggested by the petitioner, one would expect to see it being
suggested in terms, but no such suggestion appeared.
[481] Mr Gale highlighted two particular difficulties.
[482] In the first place Mr Anderson had referred to the
development of twenty one houses.
[483] In connection with that Mr Gale looked at page 15 of
the Record at paragraph 5 (3), where the following was said:
"Nicolson Bros
submitted said planning application to the First Respondents, Shetland Islands
Council, as a Local Planning Authority planning who in turn, under the
applicable planning legislation, consulted the Second Respondents (or the North
of Scotland Water Board, their statutory predecessors) as statutory consultees
in relation to drainage. Said
development is a substantial one. In one
phase some 15 new houses were constructed;
in another late phase some further 15 new houses were constructed."
[484] He reiterated that he had no idea which planning application was
being talked about. Furthermore, the
averment that NOSWA or the second respondents were consulted ran directly
counter to what Mr Anderson had said himself in his Note of Argument,
namely that they were not consulted.
[485] During the course of his submissions Mr Anderson had been talking
about the development of twenty one houses.
The averments raised that figure to thirty.
[486] The second difficulty was that as planning authority the first
respondents had certain obligations to consider under the 1997 Act. They were also authorised to attach
conditions to planning consents.
Conditions which were incumbent on the developer could be varied at the
behest of the developer with the agreement of the planning authority, but he
was unaware of any authority which would allow the planning authority to impose
conditions on a development which had already been built and in respect of
which the consent had been implemented.
There was no such authority and there was a good reason for it because
it was important that applicants be able to rely upon the consents which they
were given.
[487] One could look at these pleadings on the basis that they were so
lacking in specification that they were irrelevant.
[488] However one approached it, the case pled against the first
respondents as planning authority was completely irrelevant, not least because
there was no plea-in-law to support it.
[489] Mr Gale then turned to the claim for damages. That was inevitably tied in with the question
of title and interest, the claim being for damages to the property. I pointed out that that was not entirely the
case and Mr Gale agreed.
Nonetheless, as far as the claim for damages in respect of property was
concerned, that was predicated upon the petitioner being infeft and she was
not. That was an end of the matter.
[490] For all these reasons Mr Gale submitted that the
petitioner's averments were irrelevant and he invited me to sustain the first
and second pleas-in-law for the first respondents.
Submissions on relevancy for the second respondents
[491] The position of the second
respondents was that they accepted that they owed duties in principle under
section 1 of the Sewerage (Scotland)
Act 1968. In connection with surface water it was their duty to provide
"public" sewers but those were to deal with surface water coming from private
properties.
[492] Section 1 did not place on the respondents any duty in
respect of drains or drainage on private property itself. That was the responsibility of the owners of
the property. Equally, there was no duty
to drain the whole country or a particular area of the country. The duty was to provide only such public
sewers as were necessary to drain off sewage from private property.
[493] Section 1 ensured that where there was drainage from private
property Scottish Water had to provide the public infrastructure to deal with
that and must allow private owners to connect to it.
[494] It only happened when a necessity arose. Thus if a development was built and the owner
did not put any drains on his own property, it was not for Scottish Water to go
into that property and provide drains.
[495] Secondly, if there was no drainage to connect to the public sewer
then there was no need to provide a public sewer.
[496] There was no point in laying public sewers if there was nothing
to connect to them. Scottish Water did
not deal with private property or large areas of land over the country as a
whole.
[497] The problem was that the petitioner seemed to require of the
second respondents a duty greater than that owed under section 1.
[498] One had to look at the orders sought. They were in respect of an alleged duty to
provide a drainage system in the East Voe area. That could not be correct. That related to a whole area which might
include private property and agricultural land.
That went far beyond section 1.
[499] Furthermore, there were no facts set out which would engage the
section 1 duty. To engage that it
was necessary for the petitioner to make it clear that there were properties
with adequate private drains and that the problem was the absence of a public
sewer to which they could be connected.
That was not the case which was made out, however.
[500] He then turned to consider the terms of section 1 of the
Act. That ran as follows:
"1(1) Subject to the provisions of this Act, it
shall be the duty of Scottish Water to provide such public sewers as may be
necessary for effectually draining its area of domestic sewage, surface water
and trade effluents, and to make such provision, by means of sewage treatment
works or otherwise, as may be necessary for effectually dealing with the
contents of its sewers.
(2) Without prejudice to the generality of
sub-section (1) above -
(a) Scottish Water shall,
subject to paragraph (b) below, take its public sewer to such point or
points as will enable the owners of premises which are to be served by the
sewers to connect their drains or private sewers with the public sewers at
reasonable cost...".
[501] The duty was then to provide "such public sewers as may be
necessary".
[502] A public sewer was defined in section 59 as "any sewer which
is vested in Scottish Water".
[503] Surface water was also defined.
That was "the run-off of rain water from roofs and any paved ground
surface within the curtilage of premises."
[504] One was not therefore dealing with surface water from
agricultural land. The water in question
was only such as was coming from within the curtilage of premises and not the
road itself.
[505] What was plain was that the section did not impose a requirement
to draw off all of the surface water in Scottish Water's area.
[506] As far as section 1(2)(a) was concerned, this envisaged that
there were drains on private property to which the public sewers could be
connected. If so, then that sub-section
might be engaged.
[507] Section 59 defined drains in relation to premises as being
"any pipe or
drain within the curtilage of those premises used solely for or in connection
with the drainage of one building or of any buildings or yards appurtenant to
buildings within the same curtilage."
[508] "Sewer", in terms of the same section
"does not
include a drain as defined in the section, but save as aforesaid, includes all
sewers, pipes or drains used for the drainage of buildings and yards
appurtenant to buildings."
[509] "Private sewer" was any sewer which was not a public sewer.
[510] It was plain therefore that section 1 was concerned with
public sewers as opposed to drains and sewers on private premises. It was concerned with allowing owners of
private property to connect with the public infrastructure.
[511] Mr McBrearty then referred to section 12(1) which
provided a corresponding right of the owner of the premises to connect his
drains or private sewers with the public sewers.
[512] He reminded me again that surface water was defined as water from
roofs etc within the curtilage of premises.
[513] If there was simply no drainage at all from private property, and
that was causing a nuisance, then that was a matter for action against the
private owner. If there was no private
drain or sewer, there was nothing to which Scottish Water could connect its
public sewer. The respondents were not
under the duty of creating a drain to allow the water to get into the sewer in
the first place. There was a clear
distinction between drains and sewers.
[514] It was plainly not the second respondents' duty to deal with
private property and drain it.
[515] Mr McBrearty gave a number of examples of when
section 1 might be engaged. If
there was a new development being built with private drains and sewers but
Scottish Water refused to take the public sewer to a point where these could be
connected at reasonable cost, that would engage section 1(2) and
section 12.
[516] Equally, if there was a public sewer but Scottish Water refused
to allow connection to it, that would engage section 12.
[517] The duty was simply to allow owners of private property to
connect to the public sewer.
[518] Section 1(1) might also engage if there was, say, a public
sewer and connection was allowed to it but the public sewage system was
inadequate. Scottish Water would have to
deal with that.
[519] These situations could all be distinguished from that where there
were no drains or private sewers. It was
not for the respondents to build drains or sewers on private property or to
force individuals to do so.
[520] It was only where there were private drains and private sewers
that the duty to provide access to the public sewers was engaged.
[521] There was no mention at all in section 1 of "sustainable
drainage systems" or "sustainable urban drainage systems". As matters proceeded
however, it emerged that the section had been amended to include a duty to
provide public SuD systems by the Water Environment and Water Services (Scotland)
Act 2003. This was the subject of discussion on 13th February when
it was agreed that the duty did not impinge directly on the petition.
[522] Mr McBrearty then turned
to look at the orders sought, first of all under section 3(A)(1), (2) and
(3). He said that only the second
respondents could be affected by these orders.
3(A)(1) referred to "sewers or drains that will effectually drain the
area in the East Voe."
That went far beyond the scope of section 1. The petitioner sought to enforce a duty which
covered the whole of the area. That might
include agricultural land, which was excluded from the definition of surface
water, and in the present context the granting of such an order would be wide
enough to force Scottish Water to take responsibility for all drainage,
including that on private property.
[523] On a plain reading of the orders sought, they went beyond any
duty incumbent on Scottish Water.
[524] 3(A)(2) reflected 3(A)(1) and the same problem affected
3(A)(3). This required the second
respondents to draw up "a system for effectually draining that area of the East
Voe, Shetland marked as Zone 3 on the SIC Burgh and Trondra
proposal map of surface water."
[525] That area can be seen on No.6/10 of process and is the top area
marked 3 to the right of the bridge.
Again that encompassed private property and sought to impose a duty
outwith the ambit of section 1.
[526] 3(D)(1) sought a declarator that as a result of the second
respondents' failure to fulfil their duty "to effectually drain off surface
water" in the relevant area the petitioner had suffered loss and damage and
inconvenience.
[527] The same difficult arose in connection with that.
[528] The difficulty was also reflected in the supporting averments,
especially those at paragraph 5(3).
There it was said:
"These events
(flooding etc) would not have happened had the respondents discharged their
statutory duties of procuring or installing a sustainable drainage system for
effectually disposing of surface water in the area."
That failure was said to have
caused the damage complained of.
[529] These averments highlighted the confusion of the petitioner's
position. They cut across the
difficulties with planning and seemed to say that there ought to have been a
sustainable drainage system provided in connection with the development,
whatever it was. The issue was
highlighted by the manner in which Mr Anderson had referred to some of the
productions in opening his submissions.
He had referred to a plan of another development which showed a sustainable
drainage system and which contrasted with the development under question. His complaint appeared to be that there was no
such system for the latter. That,
however, was not the responsibility of Scottish Water.
[530] Also contained within paragraph 5(3) were the following
averments:
"Said
development, as constructed, exhibits the construction of a fill water (only)
sewer and for this area of the 'East Voe' no sustainable
drainage system in any shape or form for effectually disposing of surface water
has been constructed. In omitting to
procure or install a sustainable surface water drainage system, the respondents
are in breach of their statutory duties."
[531] The averments did not disclose a case where section 1 was
engaged. What was absent here was any
suggestion that there was an adequate system of private drains or sewers and
that the problem was the lack of a public sewer. There was no suggestion of any refusal to
allow owners to connect to a public sewer or to take it to a point where
connection could be made.
[532] Scottish Water were only to provide such public sewers "as may be
necessary". That can only be engaged
when the owners of private property have constructed drains and sewers and are
in a position to connect. If there were
no drains on private property at all for example, there would be no point in
Scottish Water's constructing a public sewer.
It would have no practical purpose and would just be an empty pipe
running under the ground.
[533] Mr Anderson had submitted in his arguments that this was a
chicken and egg situation, but it was not.
It was plain which way round the matter had to be regarded. There must be a need for a public sewer before
it was built.
[534] Section 3 of the Act was an enabling section which allowed
Scottish Water to fulfil their duties under section 1. That was not the same as saying that they
were under a duty to go on to private property to build drains in order to
drain that private property. Scottish
Water were only concerned with public infrastructure.
[535] In any event, the orders went far beyond what the Act envisaged.
[536] It was not plain from the averments that the responsibility was
with Scottish Water. There was no
suggestion that there was adequate private drainage which needed to be
connected up. That was also implicit in
the planning complaint.
[537] Mr McBrearty then referred
to the case of Tayside Regional Council
v Secretary of State for Scotland TLR
28/1/95, although this case
was not directly in point.
[538] It simply illustrated that one had to read the Act as a
whole.
[539] Section 2 of the Act was in the following terms:
"Subject to
section 4 below, it shall be the duty of Scottish Water to inspect,
maintain, repair, cleanse, empty, ventilate and where appropriate renew all
sewers, sewage treatment works and other works vested in it by virtue of this
Act or of the Water Industry (Scotland)
Act 2002."
The orders sought in connection
with this were at 3(B).
[540] The relevant averments were to be found in paragraph 5(4) of
the petition to the following effect:
"In about 1990 ...
Shetland Islands Council decided to construct a pipeline sewer running along
said East Voe.
Under section 3 of the Sewerage (Scotland) Act 1968, originally the
first respondents and then, when the project was taken over, the second
respondents dug up the surrounding ground and installed a pipeline sewer to
which the 'Sea Chest' and adjacent properties were then connected ... As a result of a combination of the
disturbance of the ground to install said sewer and the vastly increased
volumes of water coming down, all of that ground has now been eroded by the
excessive volumes of water and the sewer pipe is hanging exposed in the air
where it constitutes an environmental hazard."
[541] The nub of the complaint there was that the land had been eroded
and that was reflected in the orders sought.
The legal basis was set out in paragraph 4(D) of the petition,
which suggested that the duty to inspect and maintain was absolute and that the
various denials were irrational, illogical, ultra
vires et separatim unlawful.
[542] This was a curious mix of pleadings. We were dealing with a judicial review on the
basis of a public duty on judicial review grounds against the background of an
averment that the duty was absolute. One
might see reference to an absolute duty if there was some private law right of
action, but combining it with questions of rationality was curious.
[543] Under reference to RHM
Bakeries (Scotland) Ltd v Strathclyde
Regional Council 1985 SC (HL) 17 Mr McBrearty argued that the duty
was not absolute.
[544] This case dealt with an action for damages arising out of the
flooding of a bakery after heavy rainfall.
It was said that the cause of the flooding had been the collapse of a
neighbouring main brick sewer which had been under the control of the
defenders. The pursuers averred that the
defenders had been under an absolute duty to have the sewer maintained in terms
of section 2 of the 1968 Act, but it was held that if the duty to maintain
were absolute the duty to inspect would be unnecessary. The duty imposed by the section was only to
use all reasonable care to maintain and repair the sewer and the statutory case
was irrelevant.
[545] In his speech Lord Fraser of Tullybelton said the following (at
page 46):
"Lord Robertson read section 2 of the Act
of 1968 as imposing an absolute duty to maintain the sewer. I doubt whether that is correct having regard
to the fact that the section also imposes duties to inspect and to repair. The former would be unnecessary if the duty
to maintain was absolute and the latter seems to imply that some degree of
disrepair is to be expected and permitted and thus to negative an absolute duty
to maintain. But whether that is right
or not, I am of the opinion, on the authorities that the duty to maintain under
section 2 was not absolute.'"
[546] While, in terms, Lord Fraser only mentioned the duty to maintain
as not being absolute, Mr McBrearty submitted that it was obvious that the
other duties under the section fell into the same category. Otherwise the pipe would have to be under a
24 hour watch.
[547] The thrust of the petition was in any event a failure to maintain
the land not the pipeline. Furthermore,
the petitioner was seeking by way of judicial review to make a case under
section 2 which must carry the implication that section 2 imposed a
public law duty rather than a private law one.
[548] The RHM case was
decided in the context of private law, although the distinction was not raised
in terms in the RHM case.
[549] Whether public or private however the duty was plainly not an
absolute one.
[550] The legal basis set out in paragraph 4(D) was predicated
upon the duty being absolute and was irrelevant.
[551] It was also irrelevant because the circumstances averred were not
such as to engage the duty in terms of section 2.
[552] That duty was to "inspect, maintain, repair, cleanse, empty,
ventilate and where appropriate renew all sewers, pipe works and other
works". The purpose was to secure the
proper functioning of the sewer. All of
the duties were directed towards keeping it in working order. It would not matter if it was hanging up in
the air or under the ground.
[553] The only averment was that it was exposed and there was nothing
to say that it was not working. Nothing
in section 2 related to the surrounding ground either.
[554] There might be other remedies open to the petitioner, although
Mr McBrearty did not accept that there were any in the current
circumstances.
[555] Matters might be different if it had been said that sewage was
spilling out and going all over the place, but even then it would not be an
absolute duty.
[556] Lastly, there was a lack of clarity in the orders sought. Any orders sought had to be sufficiently
clear to allow the parties affected to do what was required of them. The order sought under section 3(B)(3)
was far too wide and did not properly identify the piece of ground
affected. However, Mr McBrearty
said that that was a subsidiary point.
[557] He invited me in all the circumstances to sustain the first and
second pleas-in-law for the second respondents and dismiss the petition.
[558] If not so satisfied, then I should give effect to his submissions
as far as I thought appropriate.
Submissions on relevancy for the interested party
[559] Before Mrs Hughes came to address me, Mr Anderson again
submitted that effectively she had no locus to do so, since no orders were
being sought against her.
[560] It seemed to me that the same considerations applied as applied
to the question of title to sue and I allowed Mrs Hughes to carry on.
[561] She had submitted that she was entitled to argue the points
because of the averments in the petition, because there was litigation
concluded and pending to which reference had been made and because of other
minor ancillary matters.
[562] It was averred in the petition that Nicolson Bros were the
residual landowners who had developed the area to which the petition related.
[563] The phrase "residual landowners" had no meaning in the law of Scotland. The petitioner had been called upon to define
what was meant by "development" but that had not been done.
[564] The petitioner's executor had raised a Small Claims action qua executor and the sheriff's decision
was to be found at No.18/2. That showed
that there was a plea of no title to sue in that action.
[565] No.18/1 was a statement of claim in which the title of the
pursuer in the action was not obvious.
[566] Paragraph 2 of the petition referred to "the said
development". The interested party was
said to have developed the area and might be taken to be responsible for the
development.
[567] It was accepted that there was no orders sought against the
interested party and no pleas-in-law directed to them but there was an averment
in 4(A) about the potential for the local authority to recover a contribution
from the interested parties, there being reference to the value of the
development.
[568] Mrs Hughes went through the petition to show that there were
a number of references to the developers and to "an application" and "such an
application".
[569] Her position was that the petitioner appeared to be saying that
there were a number of requirements which ought to have been made of the
interested party by the first respondents.
In 5/2 of the petition, circumstances appeared to move on to 1990. An extract from the pleadings in the Small Claims
action had been produced in which Nicolson Bros had apparently admitted making
an application for planning permission but the petitioner had omitted to say
that they had also required the pursuer to specify which application was being
referred to.
[570] The petitioner referred to a disposition by the interested party
in favour of the local authority which was registered in 1995. In the context of the petition, that must
mean that where the phrase "in the meantime" appeared the applications for
planning permission were in or around that year. The petitioner appeared to aver that at that
time there was no surface water causing a problem. The only water coming down to the Sea Chest
was coming from the B9074 but was not causing any problems with flooding.
[571] The interested party was having difficulty in working out exactly
when these problems arose in respect of which they might be thought to have
been at some kind of fault.
[572] In Statement 6 the petitioner proposed that it might be open
to the authority to have the interested party contribute retrospectively.
[573] Paragraph 5(1) indicated that there was no problem until after
1995. What planning permissions were
being referred to by the petitioner?
[574] It appeared from the pleadings that problems arose after 1996
when the transfer took place. The
disposition to NOSWA was registered in 1997 and there were averments in 5(3)
about the sewage pipeline being constructed and about septic tanks being
discontinued with surface water then running into the road drain. There was reference to new houses being
built.
[575] The inference which the interested party took was that the
problems dated from a point after 1997, and that was consistent with the
averments and the reference to the 1997 Act, but there was a lack of clarity.
[576] Nicolson Bros had made two applications, one in 1971 and one in
1995.
[578] These were Nos.18/7 and 18/16 of process, and were contained in
Nicholson Bros' third inventory.
[579] There was also a reference at 5(4) to the "preceding thirty
years". What was the terminus for that?
[580] All of the criticisms which Mrs Hughes made were, she said,
in light of the proposition that it was competent and appropriate for the local
authority to require a retrospective contribution from the interested
party. Mr Gale had submitted that
there was no authority in law for this and she aligned herself with that. If it were held that there was such a power,
then that could have serious consequences for the interested party.
[581] While that was a matter which could be dealt with in any
litigation between the first respondents and the interested party, it was
appropriate to deal with it in the current proceedings in order to save
litigation.
[582] She pointed to No.18/4 of process, a letter by the executor which
appeared to indicate that he was contemplating further litigation.
[583] She invited me to sustain her pleas-in-law and to refuse to admit
any averments relating to Nicolson Bros to probation.
Reply for the petitioner
[584] Before going on to his reply
Mr Anderson submitted that the petitioner's interest in the property gave her a
title to sue but if for any reason I was not with the petitioner on that point,
then I should hold that she had a good title "at bottom" and permit that to be
purified during the course of the litigation.
I could perhaps impose a condition that that be done before any extract
was issued.
[585] In relation to the order sought at 3(A)(1) Mr Anderson said
that Mr Gale was correct that Shetland Islands Council were not under the
duty imposed in section 1 of the 1968 Act.
That however missed the point of the petition.
[586] The case of Ross dealt
with a situation where the court was unwilling to look at repealed
statutes. This was not such a case here.
[587] The statute remained in force throughout and what had happened
was that a number of people had been responsible for the duties under it at
different stages.
[588] The petitioner said that between 1975 and 1996 when the responsibilities
were transferred to NOSWA, the duty was on the first respondents and they would
be liable for any faults which occurred during that period and liable for any
damages which arose.
[589] He moved me to allow an amendment to the order, so that it would
become a declarator that the first respondents were, and the second respondents
are, under the duty and that was allowed without opposition.
[590] He then referred me to Macphail
on Sheriff Court Practice at 21.75 which dealt with certain limitations on
proceedings in the Sheriff Court.
[591] He submitted that the petitioner had no alternative but to come
here. An action for nuisance would be of
no assistance, since it would only provide damages.
[592] He then referred to the case of Miller v City of Glasgow District Council
1989 S.L.T. 44.
[593] He prayed that in aid as authority for the proposition that the
sort of obligation of reinstatement which we were dealing with here did not
prescribe.
[594] He then referred me to Nos.6/34, 6/35 and 6/36 of process.
[595] The first was a letter written by him to the Freedom of
Information Officer at Shetland Islands Council dated 17 June 2006, asking for
sight of all planning applications and grants for planning permission for the
area south of the marina on the East Voe, Scalloway.
[596] No.6/35 was a letter to the manager of Scottish Water, asking for
sight of documentation relating to consultations with them in respect of
planning applications by Nicolson Bros.
[597] Paragraph No.6/36 was a letter from Scottish Water dated 13
February 2007 indicating that Scottish Water did not have any of the
information which was being requested.
[589] At paragraph 6 on page 26 of the petitioner's Note of
Argument, it was stated that representatives of the petitioner had contacted
the planning offices of Shetland Islands Council requesting under the Planning
Acts and the Freedom of Information (Scotland) Act to have sight of all
planning consultations made by Shetland Islands Council in relation to the
construction of new houses in the area of the East Voe to which the petition
related. It was said that Shetland
Islands Council had persisted in their refusal to disclose any such information
and a complaint had been lodged with the Scottish Information Commissioner.
[590] It was said that that documentation showed that the respondents,
for possibly tactical reasons, were refusing to provide information which would
assist in deciding this matter.
[591] I was referred to Rule of Court 58.9(vii) which provides that at
a first hearing the Lord Ordinary may "order any party who appears to lodge
such documents relating to the petition within such period as the Lord Ordinary
shall specify."
[592] It was said that this gave power to the court to be proactive but
I was not asked to make any particular orders in respect of this rule, nor was
a list or schedule of documents provided.
[593] Mr Anderson submitted that on a proper examination it might
be established that some of the sewer problems arose during Shetland Island
Council's tenure of office and some during the time when NOSWA or Scottish
Water were on watch.
[594] It was quite wrong for Mr Gale to say that all the duties had
flown off.
[595] The transfer scheme did not achieve that object.
[596] In any event, the erosion was clearly a matter which arose during
the tenure of office of Scottish Water and that could be distinguished.
[597] Because of the lack of information from the respondents the
petition had been pled in the particular manner. The respondents were being sued jointly and
severally or severally, particularly in relation to damages and if it
transpired that one particular body was not responsible then so be it.
[598] He submitted that at this stage, in light of the information
available to the petitioner, a relevant case had been made out.
[599] As far as the Roads (Scotland)
Act was concerned, Mr Anderson said that when a drain was constructed, the
question came to be what were the duties of the local authority.
[600] Section 31 imposed a duty to inspect it and maintain
it.
[601] There was no authority in Scotland
in point but the position in England
was set out in Mr Bailey's book.
[602] He stated that although the land did not belong to the roads
authority, the drain and the water in it did.
[603] If they allowed others to use it by putting their own surface
water into it, then that would also belong to the local authority. In England,
if other people were allowed to put water into it, then the drain became a
public sewer with all the duties that followed.
[604] That approach should be followed by me. It was inappropriate to allow water into the
drain which was not related to the proper purpose of draining the road. The petitioner had made out a relevant case
against the first respondents under the Roads Act.
[605] As far as planning was concerned, I was invited to read the
petition as a whole and not as three separate parts. As pled, the petition was complaining of a
failure to provide a sustainable drainage system. Water which ought to have been drained away
was flowing into the roadside drains and onto the Sea Chest. As the planning authority the first
respondents should have brought that under review.
[606] Mr Gale had indicated that he did not understand what the
petitioner's complaint was, because it did not refer to particular sections of
particular acts, or particular points of time.
One of the reasons was that the first respondents had not provided the
planning applications.
[607] The point though was founded fairly and squarely on a piece of
subordinate legislation and a piece of planning guidance. These were the General Procedure Order and
the Statement of Planning Practice No.7.
These said that the first respondents were obliged to consult the water
authority. Shetland Islands Council were
asked to provide evidence of that, but they had refused. Scottish Water had been asked and said they
did not have any documentation.
[608] The petition had been served and nothing had been said in answer
about any consultation. Had it taken
place then it would have been realised that there was a whole weight of surface
water building up. Unlike the good example
to which reference had been made, the houses were not built by a single
developer in one fell swoop. Nicolson
Bros had applied for outline planning permission but houses were built in dribs
and drabs.
[609] Had a proper consultation process taken place, the first
respondents would have realised that the water was becoming excessive and would
have done something about it.
[610] Reference was made to the Sheriff's judgment at page 4,
paragraph 12 which broadly indicated that he was satisfied that there was an
excess of water.
[611] That was a finding made after proof.
[612] The Sheriff Court could only award damages but could not cure the
problem. (It is not clear to me that an
action for abatement of the nuisance might not be appropriate). It was submitted that the petition contained
sufficient averments to make out a relevant case.
[613] None of Mr Gale's stated reasons for seeking to elide
responsibility stood up to scrutiny and I should not take a restrictive view of
the pleadings.
[614] The concept of consultation had existed for a very long
time. Until 1996 the local authority had
had responsibility for all aspects of sewage, water and planning and could
easily co-ordinate matters. Since these
matters had been separated, there had been difficulties. In order to avoid the difficulties
consultation was essential and had such consultation taken place in this case,
then the difficulty would have been avoided.
[615] Planning application forms asked people what their plans were for
surface water.
[616] Mr McBrearty was wrong in saying that it was for a person
who had built a house to ask for connection to the public sewer. That was preposterous.
[617] In the case of Docherty
the drains had not been constructed.
[618] In that case if the local authority had not constructed the
sewer, the developer would have had to do so.
[619] The whole thing did indeed amount to a chicken and egg problem.
[620] If only one house was involved, then it would not be reasonable
to provide a public sewer. When the
number of houses grew, so did the duty to provide a system which would drain
the district of domestic sewage, surface water and trade effluent.
[621] As it happens, the local authority had built a foul water
sewer. They did not do both because (a)
it was a pumping sewer and (b) they tended not to do that sort of thing these
days.
[622] There was some reference made to the water industry being
privatised and Scottish Water hoping to achieve the same result, but I was not
prepared to have that argument developed.
[623] Mr Anderson said that his pleadings about the potential for
retrospectively recovering something from the developers were sloppy.
[624] What he meant was that if outline planning permission had been
granted for a number of houses and it appeared, as each one was built, that
there was a problem, then before detailed planning permission was given for the
next one, particular conditions could be attached.
[625] He then moved on to section 2 of the 1968 Act.
[626] In his submission the section was quite simple. It meant that Scottish Water had to maintain
everything to do with the sewer that was vested in them.
[627] The Sea Chest pumping station was vested in them. It had been wasted away and it should be
inspected and maintained.
[628] It was the case that that duty was originally thought to be
absolute, but what was averred in the petition was that it was absolute in the
sense of its not being subject to any question of reasonable cost. He accepted what had been said in the House
of Lords in the RHM Bakeries case,
but he pointed out part of the speech of Lord Fraser of Tullybelton at
page 45, where he said:
"... the view that
I have just expressed does not by any means imply that, in a case such as this,
a pursuer cannot succeed unless he avers the precise nature of the fault
committed by the defender which caused the accident. It would be quite unreasonable to place such
a burden on a pursuer, who in many cases will have no knowledge, and no means
of obtaining knowledge, of the defender's fault. As a general rule it would, in my opinion, be
relevant for a pursuer to make averments to the effect that his property has
been damaged by a flood caused by an event on the defender's land, such as the
collapse of a sewer which it was a defender's duty to maintain, that properly
maintained sewers do not collapse, and that the collapse is evidence that the
defender had failed in his duty to maintain the sewer. The onus will then be on the defender to
explain the event in some way consistent with absence of fault on his part."
[629] He suggested that this meant that the duty was not absolute but
was the next best thing.
[630] I have to say however that I think that this simply looks at the question
of onus.
[631] In this case, there had been an averment that part of the sewer
had collapsed and the pipe was exposed.
That was all that required to be averred. The part of the land concerned was described
as the Sea Chest pumping station and was part of the sewer.
[632] The cases of Docherty and
Tayside Regional Council reinforced
the nature of the duty under the 1968 Act.
[633] Adopting the approach of the Lord President in Docherty I should ask myself whether
sufficient housing had now been built in the East Voe to engage the duty under
section 1.
[634] The averments in the petition were such that that duty was
engaged and no reasonable cost defence was pled. The suggestion that a private owner had to
purchase a pipe and then ask to be connected was not an appropriate
analysis. The real question was whether
the area merited the provision of a public sewer and/or sustainable drainage
system and if so there was a duty. By
acknowledging the need to provide a foul water sewer, the second respondents'
predecessor had acknowledged the need to provide for surface water, by
analogy.
[635] Mr Anderson conceded that he had no plea-in-law relating to
the planning argument and of consent I allowed him to insert a new
plea-in-law 10 to the following effect:
"The first
respondents having refused or delayed in implementing their planning duty to
consult the water authority and consider that matter at the planning stage,
declarator should be pronounced as sought."
[636] As far as Mrs Hughes was concerned, he referred to the case
of Ellon Castle Estates v McDonald 1975 S.L.T. (Notes) 66 and
submitted that Nicolson Bros answers lacked candour.
[637] He then went on to refer to another planning application which
was not the subject of the pleadings but, which I understand, was referred to
in a Minute of Amendment which was not moved.
[638] I was somewhat concerned at the content of some of these
suggestions made by Mr Anderson, and I did not allow him to develop that
submission, which was objected to in any event by Mr Gale.
[639] Finally, Mr Anderson submitted that the judicial review
proceeded on the basis of the finding of the Sheriff that there was an excess
of water and in relation to the law on sewage, roads and planning. The averments were sufficient and I should
appoint the case to a second hearing.
[640] Mr Gale pointed out that 3(A)(2) ought to be amended to be
consistent with 3(A)(1), but that is a technicality.
[641] He then drew my attention to section 91 of the Local Government
etc. (Scotland)
Act 1994 which provided as follows:
"91(1) Subject to sub-sections (8) and (9) below
and to section 95 of this Act, on 1 April 1996 (in this part of this Act
referred to as 'the transfer date') all property, rights and liabilities to which
... (b) the regional and islands councils in the exercise of their functions
under any enactment in relation to water supply, to the provision of sewerage
and to the dealing of with the contents of sewers, are so entitled or subject
(in this section referred to as their 'relevant' property, rights and
liabilities), shall, by virtue of this sub-section, transfer to and vest in the
new water and sewerage authorities ...".
[642] Therefore, there was no "residual liability."
[643] As far as the Sheriff's finding was concerned, he pointed out
that the Sheriff had not been satisfied that he could attribute the water to
any particular cause.
[644] Having heard all these submissions I made avizandum and indicated that I would put the case out By Order in
due course once I had issued a judgment in order to determine any question of
expenses which arose.
Discussion
[645] It is logical and appropriate that I deal first, so far as
possible, with the question of title and interest to sue, although in a complex
case such as this there will inevitably be some overlap.
[646] I apprehend that where title to sue is challenged it is for the
petitioner or the pursuer in an appropriate case to establish his or her title
and, as I have indicated, Mr Anderson's argument had three principal legs.
[647] I need not take up much time with his preliminary submission,
that the matter was res judicata,
since that is patently misconceived.
[648] I do not propose to deal with the arguments in the same order in
which they were advanced.
[649] I shall start with the question of the petitioner's infeftment,
or lack of it.
[650] There is no doubt that the petitioner is not infeft and on the
basis of the averments, the productions and the information given at the bar
the actual position would appear to be that she is entitled to the property by
virtue of Section 8 of the Succession (Scotland) Act 1964, the value of the
property being less than the prescribed sum, and that there are no other claims
upon the estate.
[651] The property has been transferred to her by way of a docquet,
which would seem to meet the point which Mr Gale sought to draw from the
case of Morrison but that docquet was
adhibited to the confirmation on 19 November 2007, pendente processu, and did not of course amount to infeftment.
[652] Is that a sufficient title for the purposes of raising an action
such as this?
[653] The cases of Sharp v Thomson and Burnet's Trustees v Grainger
do not assist the respondents in my opinion.
[654] Both of those cases involved competitions between interests in
heritage and it was the task of the Court to decide which interest was to be
preferred. That is not the position we
are in here and accordingly these authorities, high as they are, fall to be distinguished.
[655] I do not consider that infeftment is necessary where an action is
raised to protect property in circumstances such as we have here. The executor has transferred his interest and
infeftment in my opinion would, in circumstances such as this, be a mere
technicality. In my opinion the petitioner had as good a title to sue as the
last infeft proprietor, even before the transfer was effected by the docquet
and, even if I am wrong in that and the transfer was a requirement, the fact
that it took place after the petition was served does not matter.
[656] The petitioner had what can be described as a good title to the
property "at bottom" (although I would prefer the expression au fond) and the transfer divested the
executor of his interest and completed her title sufficiently inasmuch as it
depends on ownership. I agree with Mr Anderson that, if infeftment were
thought to be necessary, that could take place before decree, or at the latest
before extract.
[657] In the circumstances dismissing the petition on this ground could,
at the very least, be said to be premature.
[658] Although no reference was made to the case, I am fortified in
this opinion by the case of Walker
v Hendry and Another 1925 SC 855.
[659] As I have indicated, I hold that the petitioner is, for the
purposes of an action such as this, in as good a position as her late husband
would have been in, had he been alive.
[660] Where does that take us, however?
[661] The starting point for any discussion of title and interest
appears always to be the case of D &
J Nicol v Dundee Harbour Trustees
and I see no good reason to start anywhere else.
[662] Lord Dunedin's words at pages 12 and 13 of the report, bear
repetition.
"By the law of Scotland
a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase 'title to sue' has been a
heading under which cases have been collected from at least the time of Morison's
Dictionary and Brown's Synopsis, I am not aware that anyone of authority has
risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it
may fairly be said that for a person to have such title he must be a party (using
the word in it's widest sense) to some legal relation which gives him some
right which the person against whom he raises the action either infringes or
denies.
The simplest
case of all is where a person is the owner of something. That legal relation of ownership gives him
the right to sue all actions which deal with the vindication or defence of his
property."
I do not consider that Lord Dunedin
had in mind that ownership of property would give title to sue any action no
matter the grounds. I respectfully agree
with what is said in Clyde & Edwards
at paragraph 10.07 to the following effect:
"In applications
for judicial review the question comes to be whether there is a relevant legal
relation between the applicant and what in most cases will be a public
authority, either a body or an individual.
A legal connection has to be found between the applicant, the claim and
the body or person against whom the claim is made."
[663] I agree with Mr Gale that title to sue has to be examined in the
context of the rights and duties which are averred and the remedies
sought.
[664] It is not suggested, nor could it be I think in this case, that
if the petitioner has title to sue she has none the less no interest. I will only therefore concentrate on the
former.
[665] The question has to be answered in a number of different
contexts.
[666] The petitioner's contentions appear to be based on the Roads
(Scotland) Act 1984, the Sewerage (Scotland) Act 1968 and what I might
conveniently term the "planning regime".
Occasionally the performance of the various duties averred is alleged to
be incumbent on one or other of the respondents but the word "respondents" is
also used indiscriminately at times throughout the petition and it is not
entirely easy to understand just what exactly is being averred against each.
[667] Having considered the matter, I am quite satisfied that Mr Gale
and Mr McBrearty are at least correct on three matters.
[668] In the first place the local authority, the first respondents,
have no liability whatsoever under the Sewerage (Scotland)
Act. All their rights and duties under
that Act have been transferred to the second respondents and there is no
"residual liability" resting on them, contrary to the submission which I
understood Mr Anderson to be making.
[669] In the second place the second respondents have no liability
under the Roads (Scotland)
Act.
[670] Thirdly, the second respondents have no responsibility for
planning.
[671] Before going on to consider the rights and duties which are
averred I should perhaps make one or two further general observations.
[672] I agree with Mr McBrearty that this case is not an actio popularis. The public generally has no interest in these
proceedings, it being only the private interest of the petitioner which she
seeks to vindicate.
[673] In relation to the petitioner's status as a community
charge/council tax payer, the position is not as quite straightforward in my
opinion.
[674] In Lord Wylie's view a rate payer had no title to call the Local
Authority to account for maladministration generally. (Waddell
& Others v Stewartry District
Council). The opinion of Clyde &
Edwards at paragraph 10.34 is as follows:
"While it was
held in the past that ratepayers could not challenge an alleged
misappropriation of funds comprised in the common good, a local ratepayer has a
title to challenge unlawful or ultra
vires acts of the local authority, particularly in matters of expenditure
of funds raised by rating, or to vindicate the customary rights of a Burgh, or
to prevent an ultra vires act
directly affecting inalienable property..... It is thought that the relationship
between the payer of a local tax and the local authority to whom he pays it
should be sufficient to entitle him to challenge any excess of the authority's
power".
[675] This suggests that the local ratepayer's title to sue may
encompass more than matters relating to the funds, as Mr McBrearty appeared to
argue. Nonetheless it seems to me that
it is unnecessary and indeed inappropriate for me to attempt to look at this
issue generally or in the abstract as Mr Gale would have it. I have to consider the particular statutory
provisions which are said to have been infringed and attempt to deduce from
those whether the petitioner, as a payer of local taxes, has a title to
sue.
[676] To some extent that will impinge upon the question of
relevancy.
[677] I consider first the Roads (Scotland)
Act 1984, the relevant provisions of which (section 31(1) & (2)) I have
already set out.
[678] Section 31(1) gives the local authority a discretion to lay
drains for the purpose of draining a public road or a proposed public road or of
otherwise preventing surface water from flowing onto it.
[679] Where they do construct or lay such a drain section 31(2) places
a duty on them to "scour, cleanse and keep it open".
[680] It is argued by Mr Anderson that the entitlement of the
local authority to create road drains extends only to that which is necessary
for effectually draining the road.
[681] A declarator along these lines is concluded for (3)(C)(1). Such a declarator would not in fact follow
the terms of section 31(1) in respect that it makes no reference to preventing
surface water from flowing onto the road but that is perhaps a minor matter.
Paragraph 3(C)(2) seeks declarator that
Shetland Islands Council is not entitled to maintain a policy that they are
entitled to allow other parties to feed their surface water into road drains
created under statute by them as Roads Authority and that "their statement they
have no liability to exclude such water" (sic)
is ultra vires et separatim unlawful.
[682] Certain averments in support of that can be found at paragraph
4(B).
[683] Whether section 31(2) provides a general duty of "maintenance" is
not a matter which appears to me to be of any particular significance.
[684] If the first respondents were in breach of their duty to "scour,
cleanse and keep open" a drain which they had laid as a result of which damage
was caused then I would have thought that the owner of property affected by
that would have had title to sue.
[685] I hope that I have not missed it but I cannot see in the
pleadings any suggestion that any such breach has directly caused any such
damage. As I understand the argument it
was to the effect that had they maintained the drain they would have seen the
pipes leading into it and would have taken remedial action. Accordingly the breach of the duty to
"maintain" is incidental.
[686] I do not therefore think that the petitioner has adequately
averred any title to sue under section 31(2).
[687] A reading of section 31(1) supports the petitioner's contention
that the local authority cannot build a drain for the purposes of allowing
nearby householders to dump their water into it.
[688] It is not suggested, however, that the drain was constructed for
that purpose. It is said that allowing
this to happen would be ultra vires and
indeed there is no authority in section 31(1) for the local authority so to
allow. Once again I apologise if I have
missed it but I see no averment to the effect that that is what the local
authority did.
[689] One looks for example at paragraph 5(3) of the Petition which
says inter alia:
"Furthermore, each and every one of the houses
in this development have themselves constructed types and drains which lead
almost all of their surface water run-off into the drain to the east of said
B9074 road. Because said B9074 road
slopes from East to West, any surface water on that road is not in fact
effectually drained into the road drain running on the east side of that
road. Said drain never did function to
drain said road and, instead, now functions as the de facto surface water drainage system for the whole surrounding
area. Furthermore, surface water
escaping from the houses in said development tends to run down the surface of
said B9074 road and from that road is deposited onto the property of the 'Sea Chest'
and its access road"
It goes on to say the following:
"The individual
householders had simply, without any authority or statutory or any other
entitlement, fed the surface water run off from their houses, drives, roads and
paved areas into the road drains from where the water runs under said culvert
and onto the Sea Chest property".
There is a reference to the first
respondents compounding the problem by cutting a drain across the field
"recently" but there is no specification whatsoever of what "recently" means.
[690] Reference could also be made to an earlier statement in 5(3) to
the following effect:
"Any new houses
constructed sought permission (and were given a grant) to connect their foul
water into said pipeline and simply disposed of their surface water by feeding
it into the road drain running alongside said B9074."
[691] It would appear from the averments that the problem is caused by
the individual householders and in the absence of averment that the local
authority somehow connived at what was going on, it is difficult to see that a
breach of any part of section 31 has been made out.
[692] The timing of the various events is of course very vague and
lacking in specification but be that as it may it seems to me that in the
absence of averments which can support a relevant legal relationship between
the petitioner and the local authority in terms of the Roads (Scotland) Act
then she can have no title to sue in respect of it.
[693] Furthermore, while I have sympathy with the suggestion that the
creation of a drain for any purpose other than those specified in the statute
would be ultra vires in relation to section 31, as perhaps would
allowing householders to deposit their water into it, I see no averment that
the local authority are purporting to act under that section, or indeed that
they have so acted.
[694] That takes me onto the question of planning. I entirely agree with Mr Gale that the
averments about the development, the various applications and permissions and
the timings are so inspecific as to be irrelevant. It is quite impossible to know what planning
regime was in place at the various times when actions or omissions are said to
have occurred. More fundamentally
though, on the question of title to sue, it is not at all clear to me on what
basis this is claimed by the petitioner.
Ownership of property does not, as I understand the law, of itself
entitle an individual to enter into the planning process unless he or she falls
into specific categories. On what basis
is it said that this petitioner can challenge any planning decisions? In my opinion the answer to that can only be
found in whatever Act governs the relevant planning applications and
permissions but that is not to be found in the pleadings. The petitioner's interest in preventing
damage to her property does not in my opinion amount to a title for the
purposes of a judicial review of planning activities. I may say that I reached
this view without considering the case of Simpson
v Edinburgh Corporation 1960 SC 313,
which was in any event not argued before me.
[695] In short I am satisfied that the petitioner has not established
any title to sue the first respondents on any of the grounds set out in the
petition.
[696] No relevant breach of any statutory obligation is averred nor any
relevant ultra vires actings. There may be private law remedies available
but in my opinion no title to seek the orders sought under judicial review
procedure has been established.
[697] That brings me onto the second respondents. The only conceivable basis for any claim
against them by the petitioner is under the Sewerage (Scotland)
Act.
[698] It is in this context that the case of Docherty is of significance.
[699] Having considered the whole statute and that case I am satisfied
that the scheme of the Act is to empower householders and developers to have
their drains or sewers connected to public sewers in certain
circumstances. There is a duty on
Scottish Water under section 1 of the Act to provide such public sewers but in
my opinion that has to be read along with section 12.
[700] In discussing cesspools at page 206 of Docherty, as I have indicated, Lord President Clyde said the
following:
"The cesspool
provision is obviously a temporary expedient to save the expense of the
construction of a branch sewer until such time as a sufficient number of houses
have been erected to justify a sewer of the area to be effectually drained."
[701] Assuming there is a sufficient number of houses then the owners,
or as the case may be the developers as owners, are entitled to insist on the
provision of a public sewer to drain the area of surface water.
[702] It is only in that context that the duty to provide such public
sewers exist. I agree with Mr McBrearty
that it is not for Scottish Water to go around the country laying drains and
sewers on the off-chance that they might one day be utilised.
[703] It seems to me that the only right which is envisaged in the Act
is that of the owners to insist on connection.
They have title to sue and in my opinion no one else does.
[704] The upshot is that if their drains or sewers are not connected
and water drains from their premises onto the premises of another, then the
owner of that other property will have to take such action as he can against
them. The latter might then seek relief
from Scottish Water but that would be a matter for them.
[705] There is simply no legal relationship between the petitioner and
Scottish Water and in my opinion no title to sue under section 1(1).
[706] That, however, is not an end of the matter. A claim is made under in the current petition
under section 2. That section imposes a
duty to inspect and maintain sewerage pipelines and sewers.
[707] Whether that duty is absolute or not is not a matter on which I
need say very much, although I think Mr Anderson agreed that it was not
absolute and I do too.
[708] Were a sewer to burst, for example, and Scottish Water failed to
repair it then it seems to me that the owner of property affected by water or
sewerage coming from it would have a title to sue them.
[709] An action for damages could lie for breach of the statutory duty
or alternatively they could be ordained to perform their statutory duty.
[710] The Section 2 claim in the current case, it seems to me, really
comes down to relevancy and I will come onto that shortly.
[711] As far as the case under the Roads (Scotland)
Act is concerned, I am satisfied that it is irrelevant. The reasons advanced by Mr Gale are cogent
and the observations I have made about title to sue in respect of this Act
apply also, mutatis mutandis. It is not at all clear to me what the first
respondents are said to have done or omitted to do. There is no reference to any permission
granted to householders, the averments indicating rather that it is the
householders themselves who have taken advantage of the drain. The averments do not specify when and to what
extent householders laid pipes into the drain and in my opinion no proper
notice of any relevant case has been given.
[712] The declarator sought at 3(C)(1), as I have said, does not
properly reflect the statute but the declarator sought at 3(C)(2) is not, in my
opinion, supported by any relevant averments.
The same considerations apply to the order for specific performance
sought at 3(C)(3). I apprehend that
pleas in law 7, 8 and 9 are meant to correspond to the three orders
sought. Plea in law 7 proceeds on the
basis that the "respondents", whoever they are, are under a statutory duty to
provide and maintain a road drainage system.
I do not know where this statutory duty is to be found. Pleas in law 8 and 9 seem to follow on from
that and are similarly tainted.
[713] As far as planning is concerned, I agree entirely with the
comments of Mr Gale that it is impossible to discern which planning regime
was operative and indeed what was happening at any particular time in relation
to the "development".
I accept that in proceedings such
as this one ought not to be too critical of pleadings but there are certain
limits and in my opinion these pleadings fall short of them. While reference was made to Rule 58.9(vii),
no list or schedule of the documents in respect of which I should order
production was given to me. It is not
for me to make this up myself.
[714] I agree generally with Mr Gale's comments but there are two
matters in particular about which I ought to say something.
[715] Towards the end of his submissions, as I have indicated, I
allowed Mr Anderson to insert a new plea in law 10.
[716] As I have already said, that was as follows:
"The first
respondents having refused or delayed in implementing their planning duty to
consult the Water Authority and consider that matter at the planning stage,
declarator should be pronounced as sought"
My difficulty with that is that it
tends to conflict with the averment at paragraph 5(3) of the petition that
"Nicholson Bros." submitted said planning application to the first respondents,
Shetland Islands Council, as the Local Planning Authority Planning (sic) who in turn, under the applicable
planning legislation, consulted the second respondents (or the North of
Scotland Water Board, their statutory predecessors) as statutory consultees in
relation to drainage."
[717] I am not sure how these can be reconciled.
[718] Something was made of the fact that this averment does not appear
to coincide with material in the Notes of Argument presented by the petitioner
but that is not of such significance in my opinion as the fact that
contradictory positions appear to be adopted in the pleadings.
[719] Secondly, the averments about retrospectively seeking a
contribution from the interested party are in my opinion completely
irrelevant. No basis is set out upon
which such recovery could be sought and indeed I think Mr Anderson
conceded as much.
[720] These averments on their own, incidentally, seemed to me to be
sufficient to allow the third party to enter the process and contribute to the
debate.
[721] In relation to planning matters the petitioner seeks a declarator
at (3)(D)(2) that as a result of the failure of the first respondents to fulfil
the duties incumbent upon them to be expected from them as a reasonable and
competent planning authority she has suffered loss and damage and
inconvenience.
[722] The damages claimed at (3)(D)(3) appear to be claimed from the
first respondents in relation to these planning matters, judging by the manner
in which the petition is set out.
Damages are also sought from the second respondents because of failure
in their "duty" to effectually drain of surface water the area to which this
petition relates.
[723] The pleas in law in relation to the first respondent under this
head are the new plea in law 10, which I have just discussed, and what is now
plea in law 11 to the effect that the damages sought as a result of the failure
of the respondents to perform their statutory duties being reasonable, decree
should be pronounced as sought.
[724] The only duty which is said to be breached according to the plea
in law is that of consultation but, as I have said, the petitioner's position
is contradictory on that.
[725] There was no discussion as to whether damages can be awarded for
breaches of duties in relation to planning and I make no comment on it.
[726] Suffice it to say that in my opinion Mr Gale's arguments are, in
general, well founded and no relevant case based on any failure to act
reasonably as a planning authority has been made out.
[727] As far as sewage is concerned, I have already opined that the
scheme of the 1968 Act is to enable owners and developers to have their drains
and sewers connected to a public one.
[728] As Mr McBrearty pointed out, there is no averment that any demand
has been made by the owners or developers for connection and therefore no duty
under section 1 is engaged in my opinion.
[729] For that reason the claim under Section 1 is irrelevant.
[730] Furthermore, as Mr McBrearty also pointed out, the declarators
sought at 3(A)(1)&(2) and the order for specific performance sought at 3(A)(3)
are far too wide.
[731] There are, in my opinion, no statutory duties under section 1
which are enforceable by the petitioner and the orders cannot be made.
[732] Pleas in law 1 to 3 accordingly have no basis.
[733] As far as the case under section 2 is concerned, the averments in
respect of that are to be found principally at paragraph 5(4) of the petition.
[734] It seems to me that what it comes down to is that the sewer pipe
is said to be hanging exposed in the air where it constitutes an environmental
hazard.
[735] As I have indicated previously, had there been any averment that
water or sewage was leaking from the pipe and causing damage then matters might
have been different but that does not appear to be the position.
[736] Quite what the environmental hazard consists of is not
clear. If the pipe is intact, and there
is no averment to the contrary, it is difficult to see why there is such a
hazard.
[737] It is not suggested that this has caused any damage.
[738] The averments about the hazard are in my opinion so vague as to
be irrelevant.
[739] Other averments are made in paragraph 4(D) in relation to section
2 of the 1968 Act.
[740] These averments are hopelessly incoherent but, despite that, it
is not disputed that the second respondents owe certain duties of maintenance
under section 2 of that Act.
[741] It was their duty to inspect or maintain, repair, cleanse, empty,
ventilate and where appropriate renew all sewers, sewage treatment works and
other works vested in it by virtue of that Act or of the Water Industry (Scotland)
Act 2002.
[742] As I have said, I agree that the duty is not absolute but, as
Mr McBrearty pointed out, the purpose of this section is to secure the
proper functioning of the sewer. The
fact that it was exposed did not mean that it was not working. No reference is made in the section to
repairs of the surrounding ground.
[743] In terms of section 59 of the Act, "sewer" does not include a
drain as defined in this section but, save as aforesaid, includes all sewers,
pipes and drains used for the drainage of buildings and yards appurtenant to
buildings. "Sewage treatment works"
means any works, apparatus or plant used for the treatment or disposal of
sewage, and includes a septic tank.
[744] In my opinion the surrounding grounds cannot fall within either
of these definitions. Nor can "other works"
properly be said, in my opinion, to include land or ground.
[745] In the circumstances therefore, I consider that the case under
section 2 is irrelevant.
[746] Had it been relevant there might have been a question whether the
petitioner as a member of the public could raise an actio popularis to have the pipeline restored but that was not
argued as a discrete issue and I express no opinion upon it.
[747] It follows that the declarator and orders sought at 3(B) have no
basis and pleas in law 4, 5 and 6 are similarly afflicted.
[748] The claim for damages appears to be based, inter alia, upon the second respondents' alleged failure to
"effectually drain of surface water the area to which this petition relates",
which I think is a contention under section 1 of the 1968 Act.
[749] For the reasons which I have already given I hold that there is
no such duty and therefore the damages claim falls also.
[750] I should perhaps make one or two closing observations.
[751] It is difficult to discern any policy about which complaint could
be made but I agree with Mr Anderson that in appropriate circumstances a denial
of liability could be amenable to judicial review. (See Elmsford
Ltd v City of Glasgow Council (No.2) 2001 SC 267). However that only applies if the denial of
liability is ill-founded. If there is no
liability then a denial is neither here nor there.
[752] Lastly, even assuming that the averments about planning were
relevant and that the petitioner had a title to sue, it is difficult to see on
what basis a breach of duty in relation to planning could have "caused" the
flooding, that having been the result of actions by the developers and the
householders.
[753] However, since I heard no argument about that, I express no
concluded opinion on it.
Decision
[754] For the reasons given I sustain the first and second pleas in law
for the first respondents and for the interested party. In respect of the
second respondents I sustain the first plea in law in part (in relation to
Section 1 of the Sewerage (Scotland)
Act 1968) and repel it in part (in relation to the claim under Section 2 of
that Act). I sustain their second plea in law. The petition is accordingly dismissed
and the case will be put out By Order for consideration of expenses.
