Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 35

 

XA120/14

OPINION OF LORD BANNATYNE

In the cause

HILLHEAD COMMUNITY COUNCIL AND OTHERS

Appellants;

against

CITY OF GLASGOW COUNCIL

Respondents:

Appellants:  Ewing, Solicitor Advocate; Drummond Miller LLP

Respondents:  Ross; Glasgow City Council (Corporate Services)

8 April 2015

Introduction

[1]        This case involves an appeal in terms of paragraph 35 of Schedule 9 to the Road Traffic Regulations Act 1984 against a decision of the City of Glasgow Council (“the respondents”) dated 9 July 2014 to make the Glasgow City Council (Hillhead) (Traffic Management and Parking Control) Order 2014 (“the order”).  The respondents are the traffic authority for the City of Glasgow.  The appellants are a community council established under section 51 of the Local Government (Scotland) Act 1973 and are the community council for the area directly affected by the order and the elected members of the community council.  The community council is hereinafter referred to as “the first appellants”. 

[2]        The case called before me on the motion roll and inter alia a motion was moved by the first appellants for a protected expenses order.  This motion was moved at common law, it being a matter of agreement between parties that chapter 58A of the Rules of the Court of Session were not relevant in the circumstances of this case.    

 

The applicable law
[3]        There was no dispute between parties that such an order at common law was competent in Scotland.  It was further a matter of agreement between parties that the principles to be applied in considering whether such an order should be made are as laid out in the case of Regina (Corner House Research) v The Secretary of State for Trade and Industry [2005] 1 WLR 2600 at paragraph 74 by Lord Phillips of Worth Matravers MR delivering the judgment of the Court of Appeal and are as follows:

“(1)     A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:

(i)      The issues raised are of general public importance;

(ii)     the public interest requires that those issues should be resolved;

(iii)    the applicant has no private interest in the outcome of the case;

(iv)    having regard to the financial resources of the applicant and the respondent and to the amount of costs there are likely to be involved, it is fair and just to make the order;

(v)     if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.

 

(3)     It is for the court, in its discretion, to decide whether it is fair and just to make the order in light of the considerations set out above.”

 

In relation to the third and fifth criteria, the respondents were content for the purposes of the motion before me to accept that all of the appellants had no private interest in the outcome of the case and that the appeal would probably be discontinued, if no such order were pronounced, and that the first appellants would be acting reasonably in doing so. 

[4]        Lastly, it is perhaps convenient to set out at this point that in the course of the arguments before me Mr Ewing, solicitor advocate, for the first appellants did not rely on the second ground of appeal in advancing his argument with respect to the first and second criteria identified in Corner.  Further Ms Ross, advocate for the respondents, did not seek to found on the arguments based on title to bring this appeal which were earlier advanced before the Inner House.

 

Submissions for the first appellants
[5]        It was Mr Ewing’s position that both grounds 1 and 3 of the appeal satisfied the first and second criteria in Corner. 

[6]        The first ground of appeal reading short was this: the respondents had failed to consider all objections to the making of the order.  Regulation 7 of the Local Authorities Traffic Orders (Procedure) Scotland Regulations 1999 which applies to the making of such orders provides that:

“7.¾(1)  Before the end of the objection period mentioned in paragraph (3), any person may object to the making of an order…”

 

Regulation 12 further provides that:

 

“12.   Before making the order the authority shall consider all objections made in accordance with regulation 7 and not withdrawn...”

 

[7]        It was his submission that the respondents were obliged to follow the statutory scheme.  They were accordingly obliged to consider all objections which had not been withdrawn by those making them.  However, the respondents had not treated the objections made in this way.  Rather they had imposed an intermediate stage by writing to those who had objected in terms of the rules and required the objectors to confirm in writing if they wished to “maintain” their objection.  This further procedure he submitted was illegitimate in terms of the 1999 Regulations.  In any event, given that most objectors would be members of the public without legal advice, it was disproportionate and unreasonable. 

[8]        The third ground of appeal reading short was to this effect: the respondents had failed to have regard to the National Air Quality Strategy.  The background to this ground of appeal was set out as follows in the written appeal:

“10.  The area affected by the Order is, on its western boundary, contingent with the Byres Road and Dumbarton Road Air Quality Management Area.  Part IV of the Environment Act 1995 places a statutory duty on all local authorities to periodically review and assess air quality to determine compliance with the objectives set out in the National Air Quality Strategy and Air Quality (Scotland) Regulations 2000 as amended.  Authorities that determine air quality in their area is likely to fail to meet the objectives, are required to declare the exceedance areas as Air Quality Management Areas (AQMA).  The Byres Road and Dumbarton Road AQMA was declared by the City of Glasgow Council in 20007, in respect of the annual mean nitrogen dioxide objective. 

 

11.  Section 122(2)(bb) of the 1984 Act imposes a duty upon the authority in exercising any function under the Act to have regard to ‘…the strategy prepared under section 80 of the Environmental Act 1995 (National Air Quality Strategy)’.  In making the Order the Council failed to have regard to the National Air Quality Strategy and in particular failed to take account of the existence of the Byres Road and Dumbarton Road AQMA.”

 

[9]        In development of the ground of appeal the first appellants’ comprehensive note of argument in summary said this:

“[25]   The respondents’ answer to concerns about air quality amounted to no more than an assertion that traffic volumes would decrease.  This was insufficient to discharge the obligation imposed on them by section 122 (2)(bb).  The content of that obligation and the measures required of the authority are fact sensitive.  It may be that where there is no suggestion that a proposal will lead to an increase in traffic, that little more will be required than consideration of all the relevant factors by the decision maker.  ( see: AA and Sons Ltd v Slough Borough Council [2014] EWHC 1127 (Admin))

 

Among the relevant considerations in the present case were:

 

(i) that the area affected by the Order lies within or close to an AMQA.

 

(ii) that among the stated aims of the order was to increase parking within the area.  The respondents had commissioned a survey which found that many of the resident spaces were unused during the day.  The report to the decision maker noted:

 

‘4.3  Amending Hillhead to shared use would mean that all the parking spaces could then be used by residents and other visitors to the area, including tradespeople etc.  This short term parking will support business, shopping and tourism.’

‘4.6  During the day many of the resident only parking spaces in Hillhead lie empty, this does not make best use of the available road space.  The roads are public roads and restricting their use to residents only is not equitable with the other schemes that operate throughout the city.  The roads should be available for use by all and not just restricted to local residents which they currently are, 24/7.’

 

[26]   Allowing visitors connected to shopping, business, and tourism, to use currently empty spaces; would as a matter of common sense seem to give rise to the potential for increased traffic volumes.  Against that background, more is required of the respondents in discharging their obligations under s 122(2)(bb) than the assertion of an unsupported view that traffic volumes would decrease.  In any event the relevant duty is not limited to traffic volumes within the area affected by the Order.  The obligation is to have regard to the National Air Quality Strategy; this ought to have included consideration of the impact on air quality within the whole of the AQMA and not just those parts directly affected by the order. 

 

[27]   No information has been provided as to what material was taken into account by the decision maker in order to arrive at the conclusion that there would be no increase in traffic volumes.  No specification is provided in the respondents’ answers as to what steps where taken by them in discharging their obligation to have regard to the issue of air quality; nor whether any consideration was given to the impact of the proposals on the area of the AQMA .  The respondents have not in any substantive manner had regard to the National Air Quality Strategy in making the present Order.”

 

[10]      Turning to criteria 1 and 2 of the Corner House case, Mr Ewing submitted that both grounds of appeal 1 and 3 raised issues of general public importance and that the public interest required them to be resolved. 

[11]      With respect to ground of appeal 1 he submitted that traffic orders were from time to time made by the respondents.  The actings of the respondents which were challenged were a practice followed by them in all cases and had not merely been used in relation to the making of the Hillhead order. 

[12]      As regards the third ground of appeal his position was this: it raised an issue of general public importance, namely: what was the correct statutory construction of section 122?  He submitted that the principles to be extracted from the discussion of that issue, would be of general public importance in relation to defining what was the content of the obligation contained in section 122.  He pointed to the lack of authority in relation to this issue; there being no Scottish case which had looked at the interpretation of this section and only one English authority.

[13]      Mr Ewing further submitted in relation to this third ground of appeal that though the statutory provision under consideration, while not enacted to transpose the Directive, it related to air quality and fell within the scope of EU law.  In these circumstances it was his submission that regard should be had to the Convention.  In support of this submission he referred to Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012 in that case it was held at paragraph 35 that the Directive was not applicable.  However at paragraphs 38 and 39 the court went on to observe:

“38.   It does not follow, however, that the Convention is entirely irrelevant. In Rantzen v Mirror Group Newspapers 1986 Ltd [1994] QB 670, 691 Neill LJ considered the potential relevance of Article 10 of the European Convention to the domestic law of defamation, again before the incorporation of the Convention into domestic law. After citing the principle enunciated in ex p Brind [1991] 1 AC 692 that the provision may be used to resolve an ambiguity, he added:

 

‘It is also clear that Article 10 may be used when the court is contemplating how a discretion is to be exercised. Thus, in Attorney-General v Guardian Newspapers Limited [1987] 1 WLR 1248, 1296, Lord Templeman referred to Article 10 when considering whether the interference with the freedom of expression which the grant of an interlocutory injunction would entail was ‘necessary in a democratic society’ for any of the purposes specified in paragraph 2 of Article 10.’

 

         That is consistent with the observations of Carnwath LJ in Morgan v Hinton Organics (Wessex) Ltd [2009] 2 P&CR 30.

 

39.    In our view, therefore, the Article 9.4 obligation is no more than a factor to take into account when deciding whether to grant a PCO. It reinforces the need for the courts to be alive to the wider public interest in safeguarding environmental standards when considering whether or not to grant a PCO.”

 

[14]      In support of his argument that both grounds of appeal satisfied the first and second criteria in the Corner House case, Mr Ewing directed my attention to certain observations of the court in The Newton Mearns Residents Flood Prevention Group for Cheviot Drive v East Renfrewshire Council and Stewart Milne Homes Ltd [2013] CSIH 70 at paragraph 36, where Lord Brodie giving the opinion of the court stated this:

“As was submitted on behalf of the respondent and the interested party, there is no dispute as to the interpretation of statute or policy. There is nothing to be resolved or determined, as a matter of general public interest. What is challenged, in the sense of being sought to be reduced, is a planning permission for a relatively modest development. Any increased risk of flooding is of importance to all the individuals who fear that their properties may be affected. In a sense it is true to say, as Mr Campbell did, that flooding is a matter of public concern and that in the event of an incident of flooding public services are engaged. None of that makes what is in issue here a matter of general public importance. The interests involved are predominantly local and predominantly private. There may be applications for judicial review where the issues raised are at once local and yet of general public interest. This is not such an application.”

 

[15]      Mr Ewing submitted that the instant case was one of those in which the issues raised were at once local and of general public interest. 

[16]      Lastly, with respect to the issue of whether there was a real prospect of success in terms of said grounds of appeal he submitted the proper approach to that issue was as laid out by Lord Drummond Young in Carroll, Petitioner [2014] CSIH 30 at paragraph 14 where he said this:

“Consequently I consider that the question of whether a real prospect of success exists should not be looked at too closely. The meaning of the expression "real prospect of success" is in my opinion that there should exist an arguable case: something that has more than a remote prospect of success. The test certainly does not require a probability of success. In this connection, it should be noted that in Edwards the Court of Justice stated (at paragraph 42) that a domestic court may consider "whether the claimant has a reasonable prospect of success... and the potentially frivolous nature of the claim". Rule 58A.2(6)(b) accords with that approach. Finally, on the issue of prospects of success, I consider that if the court decides that there is a real prospect of success, it is unnecessary and undesirable to say much by way of explanation. In that event the merits of the proceedings will be decided at a full hearing, and the test that is applicable at that stage is quite different from the test of a real prospect of success.”

 

It was his position that the hurdle was, on that approach, not a high one and that the first appellants had satisfied it.  As regards criterion 5 it was not contentious that the respondents’ costs would broadly be £20,000.  The first appellants’ expenses had been agreed with their advisors at £12,000 plus court fees, which it was thought would add approximately a further £2,000 to £3,000. 

[17]      I was advised that the first appellants were grant funded by the respondents and always spent their entire grant on their normal running costs.  I was advised that they were a very active community council.  The present litigation fell outwith the normal business of the first appellants.  In these circumstances they had no resources to pay for the current action. 

[18]      In order to seek to meet certain of the costs of the action they had sought to fundraise and to date had raised the sum of £4,240 which was earmarked for this case.  They intended to seek to further fundraise.  However, clearly their financial resources were limited. 

[19]      On the other hand, although it was accepted that any public body was subject to financial restraint nevertheless the respondents could bear an award of costs. 

[20]      Mr Ewing did accept that it may be appropriate to set a cap on the expenses the first appellants could recover and he suggested a figure of £15,000.

 

Reply on behalf of the respondents
[21]      Ms Ross’, advocate primary position was that the motion should be refused in its entirety. 

[22]      It was her general position that the first appellants’ grounds of appeal had no real prospects of success and in any event did not satisfy the first two criteria in the Corner House case. 

[23]      With respect to the first ground of appeal, namely: the nature of the consideration of the objections her position was this: the complaint entirely lacked any substance.  In elaboration of this she directed the court’s attention to the respondents’ answer 7 where this was said:

“the Respondents respond to all written objections received and that they do so in a tailored and specific way.  At the conclusion of the response issued, the Respondents invite persons lodging objections and who wish to maintain them to respond within 14 days.  That is in the context of the Respondents having addressed the terms of the original objection.  It is open to persons lodging objections to withdraw them, and the 1999 Regulations make provision therefor.  The mechanism operated by the Respondents inviting persons lodging objections to maintain those objections is a legitimate and proportionate method for dealing with objections made.”

 

[24]      She submitted that given the foregoing there was no question of the respondents not having complied with their obligations in terms of the regulations.  All of the objections had been considered.  The way the respondents had approached this matter was within their discretion.

[25]      Moreover, the matter she submitted could not be elevated to one of general public interest and importance.  She initially accepted that the challenged method of dealing with objections was one which was followed by all local authorities, however, she later confined her position to saying this: the challenged method of dealing with objections was one which was the practice of the respondents.  Her submission was that the matter was entirely local in its nature. 

[26]      With respect to the third ground of appeal again, her position was that there was no merit in this ground of appeal.  She referred to the respondents’ answer 10 which was in the following terms:

“Explained and averred that the roads affected by the Byres Road and Dumbarton Road Air Quality Management Area represent only 7.5% of the area covered by the Order.  In any event, the duty on the Respondents is, so far as practicable, to have regard to the strategy prepared under section 80 of the Environment Act 1995.  The Respondents did so.  They considered whether the measures proposed would significantly increase the flow of traffic through the area affected by the Order.  Having concluded that there would not be a significant increase in the flow of traffic, it was not necessary to carry out an assessment of air quality.”

 

[27]      She submitted that in terms of section 122 there was a wide discretion granted to the respondents.  The respondents had come to a reasonable decision in the circumstances not to carry out an air quality assessment.

[28]      Further there was no public significance with respect to this issue.  This was a purely local decision, which only had a local effect and it took matters several steps too far to raise this matter to one of general public interest.  She accepted air pollution was a matter of general public interest, however, it did not follow that this decision raised matters of general public interest.  The decision regarding this matter was fact sensitive and raised no general issue of public interest.  There was, she submitted, no issue of principle raised in terms of ground 3. 

[29]      Turning to the fifth factor in the Corner House case Ms Ross did not seek to challenge the first appellants’ financial position as put forward in the course of submissions.

[30]      As a preliminary observation she said this: it was not appropriate for the court to grant the order sought on the basis that the funding of the first appellants came from the public purse and in particular the respondents. 

[31]      If I were to make an order she submitted that assistance as regards the level at which that order should be fixed could be obtained by reference to the analogous situation of an application in terms of Rule of Court 58A where the standard default position was £5,000 and the corollary of that would be to fix the respondents liability at £15,000 in light of the figures advanced by Mr Ewing. 

 

Discussion
[32]      In my judgment, a protective expenses order at common law is justified in this case. 

[33]      I am persuaded that both grounds of appeal 1 and 3 have a real prospect of success and satisfy the first and second criteria laid out in the Corner House case.  Before turning to the Corner House criteria, I have to be satisfied that the appeal has real prospects of success.  In approaching this issue I have adopted the approach and test set forth by Lord Drummond Young in Carroll at paragraph 28. 

[34]      Approaching the matter in a summary manner, I am persuaded that there is an arguable case in terms of the first ground of appeal.  On the basis of the respondents’ own averments and submissions they have innovated upon the regulations as to how objections are treated.  They accept that they have required objectors to confirm their objections and in light of the responses or lack of responses thereto by the objectors have divided objections into two categories, namely: maintained and not maintained.  The requirement to confirm the objection and the above categorisation of objections are not part of the regulations.  Against that background I believe it is arguable that they have illicitly innovated on the regulations. 

[35]      As to whether there is an arguable case in terms of ground of appeal 3 I am persuaded that the construction contended for by the appellants is on the basis of the low hurdle which requires to be satisfied at least arguable. 

[36]      Turning to the next question as to whether the grounds of appeal satisfy the first two Corner House criteria, I am satisfied that both raise points of general principle.  The first ground raises a general issue of whether a practice of the respondents as to how it deals with objections amounts in terms of the rules to a proper consideration of the objections.  I am satisfied that this is an important point, the decision of which has a materially wider application than merely deciding an issue with respect to the first appellants.  It will decide whether this practice of the respondents conforms with the regulations.  That is a point of general public importance.  The public interest requires it to be resolved in order that there is clear authority as to the proper method of dealing with such objections.

[37]      Turning to the third ground of appeal this again I believe raises a general issue of principle, namely: the proper construction of section 122 and in particular what bodies such as the respondents are required to do in order to satisfy the obligation set forth in subsection (2). 

[38]      The above is a matter on which there is no Scottish authority and only one English authority which emanates from a single judge in the Queen’s Bench division.  The court in the instant case could set out general guidance as to the construction of this section and in particular the proper approach thereto.  Such guidance would be of general application and significance in relation to this important obligation. 

[39]      I accordingly believe ground 3 meets the requirements of criteria 1 and 2. 

[40]      I am persuaded that each of the grounds of appeal raises questions of statutory and policy interpretation.  Both grounds fall four square within what was said by the court in the Newton Mearns case in that they raise issues which are at once local and yet of general public interest. 

[41]      Looking at the two grounds together I believe that they meet the hurdles set by the first and second criteria in the Corner House case.  So far as the financial test is concerned I was given adequate information.  The figure put forward as to the likely costs which would be incurred in this case by the first appellants I am of the view is realistic. 

[42]      I am of the opinion that, given the whole financial circumstances of the appellants and the potential cost of litigation, without a protective expenses order, the first appellants could not afford to proceed with the litigation and that it would be reasonable for them not to proceed.

[43]      I conclude that having regard to the first appellants’ financial circumstances including the sum raised to date for this action and their own legal expenses together with the general financial position of the respondents it would be fair and just to limit their liability and the expenses to the respondents to the figure of £1,000.  I also conclude in the whole circumstances that it is appropriate to limit the respondents’ liability to the first appellants to the figure of £15,000.  I am persuaded that in the whole circumstances the figure of £5,000 suggested by Ms Ross would not be a fair and just figure.