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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Duff & Anor v. Kiel & Anor [2006] ScotSC 89 (29 November 2006)
URL: http://www.bailii.org/scot/cases/ScotSC/2006/89.html
Cite as: [2006] ScotSC 89
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SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES
AND GALLOWAY
A3146/06
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JUDGMENT OF SHERIFF PRINCIPAL B A
LOCKHART |
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in the cause |
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ROBERT
DUFF AND ANN DUFF |
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Pursuers and Respondents |
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against |
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PETER |
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Defenders and Appellants |
Act: Ms Yvonne
Morgan, Messrs
Alt: A M Cockburn Esq, Messrs Maxwell MacLaurin
The
Sheriff Principal, having resumed consideration of the cause, sustains the
appeal and recalls the grant of interim interdict made on
NOTE:
Background to the appeal
1. In this case the respondents sought interdict against the appellants from (first) demolishing the existing dwellinghouse garage and any outbuildings presently situated at and forming 8 Graham Avenue, The Village, East Kilbride and (second) taking any step by way of excavation or construction work with a view to implementing the proposed erection on the site at 8 Graham Street, The Village, East Kilbride of a flatted development in respect of which planning permission was granted by South Lanarkshire Council on Tuesday 10 October 2006.
2.
The respondents are spouses and next door neighbours to
the appellants. Originally the appellants
made an application to South Lanarkshire Council, the planning authority for inter alia East Kilbride, for planning
permission to demolish the existing two storey building, garage and outhouses
on the ground at 8 Graham Street, The Village, East Kilbride and to erect
a development of flatted dwellinghouses in their place. That application was refused by South
Lanarkshire Council on
3.
On or about 5 July 2006 the appellants made a further
application to South Lanarkshire Council for permission for the erection of a
flatted development on the site at 8 Graham Avenue. The respondents aver that the plans for the
development were not significantly different from those submitted with the
original application. The frontage onto
4. It is the respondents case that the decision was unreasonable insofar as it was based on erroneous information and additionally having regard to the terms on which the first application for planning permission on the site was refused, and the lack of material variation between the two planning applications, the grant of planning permission was so unreasonable that no reasonable authority could have come to the decision to grant the application. The respondents on that basis intend to institute proceedings for judicial review in the Court of Session of the said decision of South Lanarkshire Council to grant planning permission. The respondents aver that they have reasonable cause to believe that the appellants, unless interdicted from so doing, will proceed to utilise the permissions granted to them and to demolish the existing housing and otherwise to take steps to prepare the ground for construction work and to proceed with construction work in implementation of said decision. The respondents crave that interim interdict should be granted pending reduction of the decision of the planning authority by way of judicial review in the Court of Session.
5.
The Sheriff originally granted interim interdict on
Submissions for the pursuers and
respondents
6. There were four grounds of appeal intimated on behalf of the appellants.
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(a) The (b) There is no wrong or apprehended
wrong. There is no unlawful or
apprehended unlawful act. The appellants
are lawfully entitled to proceed in terms of the planning permission granted
on (c) The respondents have no right, title or interest in the present proceedings. There is no legal relationship between the parties. There are no rights the respondents hold that have or will be denied or infringed by the appellants. (d) The Sheriffs misdirected themselves on the balance of convenience. The submissions for the appellants under each head were as follows: |
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(a)
The |
7.
It was submitted that this action should have been
raised in the Court of Session and any interim order should form part of a
petition for judicial review. I was
referred to the Court of Session Rules chapter 58 which deals with
applications for judicial review.
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"The
court, in exercising its supervisory jurisdiction on a petition for judicial
review may - ... (b)
make such order in relation to the decision in question as it thinks fit,
whether or not such order was sought in the petition, being an order which
could be made if sought in any action or petition, including an order for
reduction, declarator, suspension, interdict, implement, restitution, payment
(whether of damages or otherwise) and any interim order." It was submitted that this
made it clear that not only the substantive review decision was a matter for
the Court of Session, but also any question of suspension or interdict which
arose in relation to the decision in question. |
8. I was referred to Stair Memorial Encyclopaedia vol 1 para 327:
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"Interdict:
General The
remedy of interdict is an order from the court addressed to the defender that
seeks to prevent unlawful injury to the pursuer's rights. It may be invoked either when a wrong is
being actually committed or when a wrong is apprehended." It is further stated: "When
the interdict is sought in exercise of the court's supervisory jurisdiction,
the procedure of an application for judicial review must be used." It was submitted that this
interdict was essentially in connection with a petition for judicial review
and that any interim order for interdict could not be divorced from
that. It was submitted that the |
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I was also referred to Stair para 330: "Suspension
is often sought together with interdict to prevent the infringement of a
right. It may be used as a method of
staying diligence and for setting aside decisions of inferior criminal courts
... ... Under the procedure for application for judicial review introduced in
1985, the power of the Court of Session to make an order of suspension is
confirmed. Insofar as reduction,
interdict and suspension are means by which the court may exercise its
supervisory jurisdiction, the remedies must all be sought by an application
for judicial review." |
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I was further referred to Stair para 346: "Thus
remedies such as the reduction of the decision of a public authority on
grounds of ultra vires or breach of
natural justice, or a declarator of an authority's duties must be sought by
application for a judicial review, and not by an ordinary action initiated by
summons or petition." It
was suggested that interim orders in the Court of Session could deal with the
particular facts and circumstances of any case. It was submitted that interdict was part of
the exercise of the supervisory jurisdiction.
It followed that the |
9. I was also referred to Scott Robinson on Interdict at page 137:
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"In the
context of interdict, the importance of ensuring the competency of the
application for judicial review lies of course in the fact that, since the
interdict sought is, in effect, an ancillary remedy, it must stand or fall by
the competency of the application for judicial review. |
10. It was submitted that it was clear that the interdict sought here was an ancillary measure to protect the respondents pending the outcome of the judicial review process. It was submitted that the application for interim interdict must stand or fall on the basis of the competency of the whole application for judicial review.
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(b) No
wrong or apprehended wrong |
11. I was referred to Burn Murdoch on the Scots Law of Interdict page 86 para 100:
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"A
threat of injury is sufficient ground for an application for interdict, and
in like manner a reasonable apprehension of injury from the proceedings of
the parties complained against is also in many circumstances a very good
ground for such an application." Again at para 101 "... A man must shew either that he has actually
suffered, or has a reasonable cause to apprehend the risk of suffering, at
the hands of another, before being entitled to ask an interdict against him." Also at para 145 "Interim
interdict will be granted to prevent some danger to the complainer that would
be a manifest injuria, and that is
also imminent or threatened; for example "apprehension of personal injury, or
of danger to life, or of great or perhaps irreparable loss." 12.
It was suggested that the threat must be imminent and the harm
anticipated must be a legal injuria. It was submitted there required
to be an anticipated legal injury and a wrongful or illegal act. There was no wrongful act in this
case. The appellants were proposing to
demolish the building on their property in conformity with the planning permission
granted to them. If the respondents
were vindicated in the Court of Session in their application to reduce the
grant of planning permission, any subsequent act of demolishing the building
would then be wrongful. However it was
not wrongful for the appellants to demolish the existing building at present
because they had planning permission in their favour. |
13. I was further referred to Scott Robinson on Interdict page 1:
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"Interdict
is a remedy granted by the court either against a wrong in course of being
done or against an apprehended violation of a party's rights. It will only be granted upon evidence of a
wrong or on grounds of reasonable apprehension that such a violation is
intended." It was submitted that the
writ did not specify a wrong. The interim
interdict presently in force prevented the respondents from lawfully carrying
out the work in conformity with the planning permission which had been
granted in their favour. It was
submitted that there was no wrongful act or threatened wrongful act or
injury. There was no prima facie case and the pursuer and
appellant was not entitled in these circumstances to
seek interim interdict. It was
suggested that the respondents proper remedy in this
case was to raise an action in the Court of Session against the South
Lanarkshire Council for judicial review of their decision to grant of
planning permission on |
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(c) No
right title of interest for the pursuer to pursue this action |
14. It was submitted there was no legal relationship between the parties and no rights which the respondents held which have been or will be denied or infringed by the appellants. The respondents may have certain rights against the planning authority but they had no legal relationship with the appellants. I was referred to Burn Murdoch para 51:
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"In a
question of title to sue, patrimony of interest is not used in so extended a
sense; the prospect of money lost to a trader does not in itself confer on
him any title to interdict the proceedings of a trade rival. For a person to have title to sue, he must
be a party, (using the word in its wider sense) to some legal relation which gives him some right which the person against whom
he raises the action either infringes or denies." I was also referred to
Scott Robinson page 26: "Other
examples of attempted use of interdict in planning cases includes Simpson v Edinburgh Corporation (1960
SC 313) where it was held that a neighbour, although having an interest to do
so, had no title to interdict as ultra
vires a decision of a planning authority.
The power of a planning authority was discretionary and the
legislation had not been amended to confer a separate right of action on an
interested neighbour. When a planning
application is called in by a regional council the applicant has no title to
interdict the procedure." I was referred to the case
of Wemyss Bay Caravan Park Limited - Petitioners, 1990 GWD 3-141 where
Lord McCluskey stated: "In
particular the character of the right which was said to be endangered by the respondent's
activities was not spelled out. This
was not unimportant because the rights of parties might differ depending upon
what alleged right was said to be invaded.
There was indeed no relevant averment of the right which was invaded
or threatened to be in danger." |
15. In this case it was not clear what harm it was the respondents claim they had suffered at the hands of the appellants and what right was invaded or threatened. It was suggested here that the appellants were acting with the lawful authority of the planning permission granted in their favour.
Balance of convenience
16. I was referred to the well known dicta of Lord Justice Clerk Inglis (as he then was) in Baird v Monkland Iron and Steel Company 1862 24D 141 at 1425:
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"In the
meantime, the question which presents itself for your Lordships consideration
is, what is most for the interest of the
parties? Is it that this interdict
shall be granted, and the operation stopped for the present, or that the
interdict shall be removed, and the operation allowed to go on; which question almost come to a balance of advantages and
disadvantages on the two sides. If
there is irreparable injury to be sustained by either recalling or keeping on
the interdict, that is a very important
consideration. If there is a irreparable injury on both sides, and as the necessary
consequence of either proceeding, it raises a very difficult question
indeed. Still, it will be a balance of
convenience and injury, upon which side is the balance? Where is the greater injury to be
apprehended? But if on the one side
you see an unquestionably irreparable injury, and if on the other you do not
find anything in the materials before you that has
the appearance of an irreparable injury, then I think there can be no doubt
upon which side the balance should turn." |
17. It was submitted that what was of importance was weighing the advantages and disadvantages of the parties. It was submitted for the appellants that they would incur a very substantial loss if interdict were continued to be granted. They had a building programme in place which awaited the grant of planning permission. That involved the ordering of a bespoke kit for the building of the new structure, which was very expensive. A demolition team was waiting to proceed with the demolition. This was a business venture where a serious amount of work had been done in advance. There would be losses in the region of £550,000 if the building works could not proceed. I was referred to Scott Robinson at page 179:
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"In
question of interim interdict the relative inconvenience resulting to either
party from its grant or refusal is a dominating consideration and must fall
upon one side or the other ... The object is to regulate interim
possession in such a way as to do least damage in the meantime to either
party, at the same time to provide sufficiently for proper restitution being
made for any damage suffered by the party who shall be found to have been in
the right when the case is over." In this case the appellants
did not make the decision. The South
Lanarkshire Council had given the appellants permission to proceed with their
demolition and building proposals. Given
the significant and material loss that the appellants would suffer if
prevented from acting on the lawful grant of planning permission, it was
suggested the balance of convenience favoured the appellants if the
respondents were held to have established a prima facie case. |
18. Counsel for the respondents moved for the expenses of the case on a solicitor/client basis referring to the case of Baker Hughes Limited v C C G Contracting International Limited 2005 SC 65. He also moved for certification for counsel.
Submissions for the defenders and
appellants
19. It was submitted that the appeal court could not interfere with the discretion of the lower court unless it could be demonstrated that the Sheriff had misunderstood or misapplied the law. I was referred to Scottish and Universal Newspapers v Smith 1982 SLT 160 at 163:
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"When
it comes to reviewing the discretion of the judge in the court below in
determining where the balance of convenience lies, the appeal court is slow
to interfere with that discretion unless the judge has misunderstood or
misapplied the law or has reached an unreasonable conclusion on the facts." |
20. It was submitted that it was not appropriate to be hypercritical of the state of the pleadings. They set out that the objection was not dealt with fairly and that the decision was unreasonable having regard to the Wednesbury principles. If the appellants had the right to have their objection dealt with fairly then they had the right to a judicial review. It was suggested that the Sheriff weighed up the relative effects on parties of the demolition taking place. It was beyond doubt that the demolition of the respondents' house would end the matter. It would then be academic to review the planning decision of South Lanarkshire Council. It was suggested that the Sheriff had reasonably exercised her discretion in that the balance of convenience favoured the status quo. There was no legal basis to interfere with her discretionary decision.
21. It was accepted that for a grant of interdict there required to be (a) a prima facie case and (b) the balance of convenience favoured the grant of the interim interdict. It had been suggested on behalf of the appellants that someone who was not a party to the original planning decision could only be interdicted in the Court of Session. It was accepted that the forum for the judicial review was certainly the Court of Session. Rule 48.4 allowed incidental orders to be made in the Court of Session, but this was not mandatory. The current appellants would not necessarily be convened as defenders if an action for judicial review was taken in the Court of Session. The review would be concerned solely with the administrative decision taken by the local authority and the only two parties to the review would be the current respondents and the local authority.
22.
It was suggested there was overlapping jurisdiction in
the
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"In
relation to interim interdict however the court does have an equitable
control so that before the ultimate rights of the parties are determined the
court can take into account the balance of convenience." |
23.
It was submitted that all that the Sheriff was doing
was exercising an equitable control of a situation where it was believed that
the respondents would suffer loss of amenity if the present appellants were to
act in consequence of a decision wrongfully made by the local authority. It was suggested that there were many
instances where the immediacy of the action being raised was a crucial factor,
and although it might be possible to proceed in the Court of Session and obtain
interdict within the timescale, that does not elide the ability to raise
proceedings in the local
24. It was submitted that the dicta in the textbooks of Burn Murdoch and Scott Robinson were not habile to the situation where the wrong was committed by a third party and the right offended was the right to have an objection dealt with reasonably. It was suggested that all the interim interdict did was maintain the status quo where there is a triable issue between the respondents and the local authority. The Sheriff had expressed herself satisfied on that issue. At page 4 of her judgment she said:
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"I am
satisfied that the respondents had averred a prima facie case and that the balance of convenience favoured the
continuation of the interim interdict previously granted on |
25.
It was submitted that on the basis that there was a prima facie case, there was no error in
law. The decision itself was not
unreasonable. It was submitted there was
no basis for interfering with the Sheriff's decision.
26.
Solicitor for the respondents was asked to define the
wrong which he claimed had been infringed.
He submitted that the wrong was the potential injury to the respondents
by the disturbance of their amenity as it exists at present. The amenity of the area would be disturbed if
the existing dwellinghouse was demolished and the proposed flats were
erected. He accepted that the appellants
had done nothing unlawful, but they were the conduit through which injury would
be sustained. It was submitted that the
law of interdict would be the same whether the matter was raised in the Court
of Session or the
27. Counsel for the appellants replied that if an action was raised by the respondents in the Court of Session for judicial review, South Lanarkshire Council would be the defenders as it was their decision that was being challenged. The wrongful act that was said to exist was that of South Lanarkshire Council in granting planning permission. There was no injury or unlawful act, actual or apprehended, at the instance of the appellants who, if they demolished the property, would be acting in accordance with the grant of planning permission. It was submitted that any judicial review could involve the respondents seeking interim orders in terms of Rule 58.4. If the Court of Session could be persuaded to make an order for interim suspension of the grant of planning permission by South Lanarkshire Council, that interlocutor would be intimated to the appellant and it would then be unlawful for them to proceed with their demolition and building proposals. Interdict of the appellants would then be a course open to the respondents.
Decision
28.
An application for interim interdict can only be
granted in the
29.
In this case the appellants on
30.
In my opinion at that time the appellants were
proposing to act legally. They were
acting in accordance with the grant of planning permission in their favour of
31.
The respondents' complaint is with the decision of
South Lanarkshire Council to grant planning permission to the appellants for
their proposed development. Although at
the date of the hearing of the appeal on
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"For a
person to have title to sue, he must be a party (using the words ion its
widest sense) to some legal relation which gives him
some right which the person against whom he raises the action either
infringes or denies." In this case there is no
legal relation between the appellants and the respondents which, it is alleged,
the appellants either infringes or denies.
Accordingly the respondents do not have any right, title or interest
to seek interdict against the appellants who are proposing to act in
accordance with the planning permission granted to them. |
32. In these circumstances I take the view that the respondents have not, prima facie, established that the appellants have committed any wrong or that the commission of any wrong by them is to be apprehended. The appellants propose to act legally in terms of their planning permission. The respondents have no right, title or interest to seek interdict against the appellants at this stage. Their complaint is with the decision of the South Lanarkshire Council.
33. It is not necessary for me to consider the balance of convenience in light of the decision which I have made. However, I have to say that, if I had taken the view that the respondents had established prima facie an apprehended wrong and that they had a right to pursue this action, I would have considered that the balance of convenience lay with the respondents and the maintenance of the status quo.
34.
It is my view that the proper course as far as the
respondents are concerned is to raise an action for judicial review of the
decision of
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"The
court, in exercising its supervisory jurisdiction on a petition for judicial
review may - ... (b) make such order in relation to the decision in question as
it thinks fit ... including an order for ... suspension, interdict ... and any
interim order." If
interim suspension of the decision of South Lanarkshire Council were granted
in the Court of Session, it would then be unlawful for the appellants to
proceed with their demolition and building proposals. If necessary, the respondents would be
entitled to seek interim interdict against the appellants. That could be done either in the Court of
Session as an ancillary matter in respect of the application for judicial
review, or in the |
35.
For the reasons which I have given I shall recall the
interim interdict granted on