Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT FALKIRK

 

Case No: B489/12 NOTE   by   John K Mundy, Esq, Advocate, Sheriff of Tayside Central and Fife.   in Appeal by pursuers under section 80(3) of Environmental Protection Act 1990   in causa   MOHAMMED SAFDAR and A & N BROTHERS (a partnership)   Pursuers   against   FALKIRK COUNCIL   Defenders __________

 

Act: Sandeman

Alt: Gilmour

 

Falkirk, 28 March 2013

 

The Sheriff, having resumed consideration of the cause, finds the pursuers liable to the defenders in the expenses of the appeal, allows an account thereof to be given in and remits same when lodged to the auditor of court to tax and report.

[1] This Note concerns the issue of expenses arising from an appeal by the pursuers by way of summary application under section 80(3) of the Environmental Protection Act 1990 ("the 1990 Act") against an Abatement Notice ("the Notice") served by the defenders upon the pursuers dated 14 September 2012. The Notice prohibited the opening of roller metal shutters serving the windows of the pursuers' premises (licensed grocers) earlier than 8am on any day on the ground of statutory nuisance. The perceived nuisance related to the noise of the shutters and the effect of that on neighbours living above the premises. On 5 March 2013, I issued a judgement dismissing the appeal and I heard parties' agents on the question of expenses on 21 March 2013.

 

[2] As indicated in the judgement, notwithstanding the terms of the summary application, the appeal was restricted to the grounds mentioned in regulation 2(2)(a) and (c) of The Statutory Nuisance (Appeals) (Scotland) Regulations 1996 ("1996 Regulations"). In particular the argument under reg. 2(2)(a) was that the Notice was not justified under section 80 of the 1990 Act, the issue there principally being whether a statutory nuisance existed. In relation to that, the question was whether the noise constituted a nuisance. The pursuers contended that it did not. Further, the ground under regulation 2(2)(c) was restricted to arguing that the Notice was unreasonable in its extent and in this respect the pursuers sought to establish loss of trade as a result of the restriction. I was invited on behalf of the pursuers to quash the Notice or alternatively vary its terms. The defenders sought dismissal and that was the result.

 

[2] Mr Gilmour for the defenders submitted that, as they had been successful in the appeal, expenses should be awarded on favour of the defenders in accordance with the general rule that expenses follow success.

 

[3] On the other hand, Mr Sandeman for pursuers submitted in the first place that this was in the nature of an appeal to the Sheriff in his administrative capacity, rather than his judicial capacity and that the normal rule in such cases was that there should be no expenses due to or by either party unless the application could be described a vexatious or where special circumstances exist (Macphail, Sheriff Court Practice, 3^rd Ed. p 878, para. 26.47; McLean v Renfrew Mags (1930) 47 Sh. Ct. Rep 42; Tobermory Mags v Capaldi 1938 SLT (Sh. Ct) 38; Classic Cinema Ltd v Motherwell DC 1977 SLT (Sh. Ct) 69). He submitted that there was no reason in this case to depart from the normal rule. As submissions were developed, he adopted an alternative position in the event that I found that I was acting in my judicial capacity, which was that I should find no expenses due to or by either party in the exercise of my discretion having regard to various factors in this case.

 

[4] In support of his principal submission that I was acting in my administrative capacity, Mr Sandeman initially referred to the fact that the appeal was on the merits - I had effectively been considering the issues de novo in a similar way to the local authority. However, he later appeared to accept that the distinction between an appeal on the merits and one of review was not of assistance in this case. He also referred to the terms of section 80(3) of the Environmental Protection Act 1990 which refers to an appeal against an abatement notice to "the sheriff" rather than to the sheriff court. Similarly, regulation 2(1) of the 1996 Regulations, which governed such appeals, refers to "appeals to the sheriff" and in this respect he referred to the opinion of the court in Rodenhurst v Chief Constable of Grampian Police 1992 SLT 104 (also reported in 1992 SC 1) where reference was made (at p.6 of SC) to the observations of Lord President Cooper in Arcari v Dumbartonshire County Council 1948 SC 62 at page 66. He also referred to regulation 2(5) which dealt with the powers of the sheriff in dealing such appeals. The sheriff could quash the notice, vary it or dismiss the appeal. If varied the notice is regarded as final. Those provisions, he submitted, indicated that the administrative capacity of the Sheriff was being invoked. He further submitted, in meeting the defenders' principal argument in response (see below) that there was no true lis between the parties, the issues being matters of fact and not law.

 

[5] In support of his alternative submission (if held that sheriff acting in his judicial capacity) Mr Sandeman referred to the fact that there was no discussion between the council and Mr Safdar prior to the service of the abatement notice, and while recognising that no blame could be attached to the council in view of their statutory obligation to serve a notice in the event of a perceived nuisance, his client's only remedy, if aggrieved, was to appeal and so no fault could be attributed to him. Accordingly, he submitted, there should in any event be a finding of no expenses due to or by either party.

 

[6] In response, Mr Gilmour for the defenders referred to Rodenhurst. He submitted that there was in this case a true lis between the parties upon which I had to pronounce judgement; in particular the issue of whether a statutory nuisance existed, which was a question of law, and that I had accordingly acted in my judicial capacity rather than an administrative one. He also founded on the fact that this was, as in Rodenhurst, a summary application in relation to which I required to issue a written judgement. Further, the fact that the appeal was to "the sheriff" was only one factor amongst others (Lord President Cooper in Arcari at pp. 67/68). As to the general exercise of my discretion in the event that I was with him on the principal argument, he submitted that there was no reason to modify the normal rule, particularly where Mr Safdar had failed to establish the grounds relied upon and in particular had failed to establish his case of loss of trade as a result of the notice. Mr Gilmour conceded that if I found that I was acting in my administrative capacity then the appropriate disposal would be no expenses due to or by either party and so he was not taking issue with the authorities cited in that regard.

 

[7] The principal issue of whether I was in this case acting in an administrative capacity or a judicial one is normally seen in the context of whether an appeal lies from the decision of Sheriff but the authorities are nonetheless relevant in the present context of expenses. Both sides accept that if I find that I was acting in an administrative capacity then the appropriate result would be no expenses due to or by either party in accordance with the general rule mentioned in Macphail at 26.47. The author also deals (at paras.26.30 - 26.45) with the various factors in considering the principal issue under reference inter alia to the authorities cited by parties in argument. Some of these factors were founded upon in this case.

 

[8] It seems to me that the starting point in considering the principal issue is the terms of the statute conferring the right of appeal (Arcari, per Lord President Cooper at p. 66).

Section 80 of the Act provides inter alia:

"(1) Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice ("an abatement notice")...

(3) A person served with an abatement notice may appeal against the notice to a magistrates' court or in Scotland, the sheriff within the period of twenty-one days beginning with the date on which he was served with the notice."

 

The 1996 regulations provide inter alia:

 

"2.-(1) The provisions of this regulation apply in relation to an appeal brought by any person under section 80(3) of the 1990 Act (appeals to the sheriff) against an abatement notice served upon him by a local authority.

(5) On the hearing of the appeal the court may-

(a) quash the abatement notice to which the appeal relates; or

(b) vary the abatement notice in favour of the appellant in such manner as it thinks fit; or

(c) dismiss the appeal,

and an abatement notice that is varied under sub-paragraph (b) above shall be final and shall otherwise have effect, as so varied, as if it had been so made by the local authority."

 

[9] As regards the appeal being described as being to "the sheriff", rather than to the court, this must be seen in the context of the provisions as a whole, which include the regulations. The statute itself refers to an appeal to the magistrates' court (in England and Wales) and, as pointed out in Rodenhurst, which concerned a decision to revoke a firearms certificate under the Firearms Act 1968 against which an appeal lay to the sheriff and in England and Wales to the Crown Court: "...it would be surprising if Parliament in this context was providing for an appeal to lie in England and Wales to a court exercising an administrative jurisdiction, but for an appeal in Scotland to lie not to a court, but to a sheriff acting in an administrative and not a judicial capacity." (p.9). It seems to me that the same applies here. Further, as can be seen from regulations 2(5) of the 1996 Regulations, it is the court which exercises the various powers of disposal of the appeal. Accordingly, I do not consider that this factor supports the pursuers' argument. Rather, it is against it.

 

[10] The authorities would suggest that the most critical issue in many cases is whether there is a true lis between the parties. As was observed in Kaye v Hunter 1958 SC 208, per Lord President Clyde at p. 211:

"If what is appealed to the Sheriff is in a real sense a true lis between the parties, so that the Sheriff has to pronounce a judgment between the respective claimants, then the appeal involves invoking the Sheriff in his judicial capacity and his decision is subject to review by this Court-see the case of  Arcari  and the opinion of the Lord President at the top of p. 68."

This passage was approved by the Inner House in Rodenhurst although the decision was overruled in other respects and it seems to me to point to the answer in the instant case.

In the present case there is a summary application in the form of an initial writ and answers, both of which were incorporated into a Record. Both the application and answers contain pleas-in-law which required to be adjudicated upon all as set forth in the judgement. At the invitation of the parties, evidence was led in order to resolve the issues, one being whether a statutory nuisance existed and another being whether the pursuers had suffered loss of trade as a result the service of the abatement notice, both in the context of the statutory grounds set forth in the 1996 Regulations. Given the terms of section 50 of the Sheriff Courts (Scotland) Act 1950, I was required to issue a judgement in writing. As I had heard evidence, I considered it appropriate to set out my findings in fact and in law. It seemed to me that whether a statutory nuisance existed involved a question of law which I resolved in favour of the defenders. In other words, there was in my view a true lis between the parties which invoked a judicial capacity rather than an administrative one.

 

[11] One matter which gave me cause to pause and consider was the terms of Regulation 2(5) which refers to a notice varied on appeal in terms of sub- para. (b) being final in its terms. That might suggest finality to the Sheriff's decision and therefore point to an administrative role. However, the provisions do not state that there was any finality where the Notice was quashed or where the appeal was dismissed in terms of reg. 2(5)(a) or (c) and so an appeal would appear to lie in relation to decisions under those provisions. In other words, the finality clause does not encompass decisions in terms of sub-paras. (a) and (c).

 

[12] Finally, on the principle issue, while recognising that differences in practice and procedure exist between the two jurisdictions, it is noteworthy that in England and Wales in appeals under section 80(3) of the 1990 Act, the Magistrates' Court has wide powers in relation to costs and to make such order as to costs as it thinks just and reasonable (section 64 of the Magistrates' Courts Act 1980 and R v The Southend Stipendiary Magistrate, ex parte Rochford District Council [1995] Env.LR 1). It would be unfortunate if the position in Scotland was to be substantially different and as restrictive as suggested on behalf of the pursuers.

 

[13] Given my conclusion on the principle issue, the question is whether, in the exercise of my discretion, I should follow the general rule that expenses follow success or whether I should adopt another course. As indicated I was urged on behalf of the pursuers to make finding of no expenses due to or by either party.

 

[14] While there may have been no formal notification to the pursuers of the perceived nuisance prior to service of the Notice, I found (Finding in Fact 14) that Mr Henderson of the defenders brought the matter to Mr Safdar's attention around a year prior to service of the Notice, suggesting that the roller shutters should be serviced. Mr Safdar took no steps to prevent or reduce the level of noise generated by the shutters (FF 15). Further, as can be seen from the terms of section 80(1) of the 1990 Act there is a statutory duty to serve a notice in the event that the defenders perceive a statutory nuisance occurring. I accept that an aggrieved party must lodge an appeal if he seeks to challenge an abatement notice and to that extent there is no blame to the pursuers for initiating the proceedings. However, my findings make it clear that there was a statutory nuisance and I had little hesitation in finding that there was. Indeed, Mr Safdar appeared to accept that there would be disturbance (paragraph [8] of Note in judgement). On the issue of the extent of the notice, in which the issue of loss of trade loomed large, there was no satisfactory evidence of this which I could put in the balance in deciding whether it was reasonable in its extent and one would expect some vouching or other corroborating evidence to set up a colourable case. There was at the end of the day an onus on the pursuers to establish the grounds of appeal founded upon. They failed to do so.

 

[15] I have accordingly concluded that there is no reason to depart from the normal rule and accordingly the defenders are entitled to their expenses. I have pronounced an interlocutor to reflect this.