Arcari v Dumbarton-shire County Council
| Jurisdiction | Scotland |
| Judgment Date | 16 January 1948 |
| Date | 16 January 1948 |
| Docket Number | No. 11. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Local GovernmentBurghPlanning schemesInterim development controlStatutory appeal to SheriffFinality of Sheriff's judgmentWhether appealable to Court of SessionTown and Country Planning (Interim Development) (Scotland) Act, 1943 (6 and 7 Geo. VI, cap. 43), sec. 5 (1) and (2) and First Sched.
Held that the judgment of a Sheriff or Sheriff-substitute pronounced in an appeal to "the Sheriff" under sec. 5 (2) and First Sched. of the Town and Country Planning (Interim Development) (Scotland) Act, 1943, against any action proposed to be taken under sec. 5 by the interim development authority may competently be appealed to the Court of Session.
Allen & Sons Billposting, Limited v. Corporation of Edinburgh, 1909 S. C. 70, commented on.
Frederico L. Arcari, as occupier of Beechwood, Drymen Road, Balloch, Dumbartonshire, appealed to the Sheriff in terms of the Town and Country Planning (Interim Development) (Scotland) Act, 1943,1 First Schedule, paragraph 2, against a notice served
on him by the County Council as interim development authority. The notice stated that it was their intention, acting under the powers conferred on them by section 5 of that Act, to issue an order prohibiting the use of his dwelling-house as a shop or place of public refreshment, or otherwise than as a dwelling-house; prohibiting the use of the adjoining land for the placing thereon of a kiosk; and providing for the re-instatement of the land upon which the kiosk had been erected. The notice further stated that this action was being taken because development of the nature referred to was not in accordance with the Town and Country Planning (General Interim Development) Order (Scotland), 1946, or with any permission granted to him under that Order; and would be contrary to provisions to be included in the Vale of Leven Planning SchemeOn 5th November 1947 the Sheriff (Maconochie, K.C.) allowed the appeal, holding, on a consideration of the averments relative to the Vale of Leven Planning Scheme, that the County Council had not relevantly averred the existence of any proposed scheme to which they had regard in taking action against the appellant under section 5 (1) of the Act of 1943.
The County Council appealed to the Court of Session, and the case was heard before the First Division on 6th and 7th January 1948, when the arguments were confined to the question whether an appeal to the Court of Session was competent.
At advising on 16th January 1948,
LORD PRESIDENT (Cooper).On 29th July 1947, acting in pursuance of section 5 of the Town and Country Planning (Interim Development) (Scotland) Act, 1943,22 the County Council served on the respondent a notice of their intention to prohibit the dwelling-house which he occupied being used for any purpose other than a dwelling-house; to prohibit the land adjoining the house from being used for the placing thereon of a kiosk; and to provide for the reinstatement of the land upon which a kiosk had been erected. In terms of section 5 (2) and the First Schedule to the Act, the respondent appealed to the Sheriff, who, after sundry procedure, allowed the appeal. The County Council have now appealed to the Court of Session, and the only question meantime before us is whether an appeal to this Court is competent.
The guiding principle was stated by Lord Trayner in Harper v. Inspector of RutherglenUNKSC23 in these words: "Every judgment of an inferior Court is subject to review, unless such review is excluded expressly or by necessary implication." It was formulated more fully by Lord President Inglis in Marr & Sons v. LindsayUNKSC24 in the statement that "the general rule is that the right of appeal from an inferior to a superior Court cannot be taken away except by express words. That is a rule which may be said to be subject to some qualification, because, if the jurisdiction exercised by the Sheriff is a jurisdiction which is specially given to him by statute, and in which this Court has not previously had jurisdiction, it may be much more easily implied that the Sheriff's jurisdiction is not only privative, but final, and not subject to review." As was pointed out in Glasgow Corporation v. Glasgow Churches' CouncilSC,25 the Sheriff has been employed from the earliest times, and to an increasing extent in recent years, in the discharge of multifarious functions which are more administrative or ministerial than judicial, and many decisions show how difficult it often is to decide whether a given determination by a Sheriff is truly a judicial determination of a Court, issuing in a judgment within the familiar framework of our system of practice and subject to ordinary methods of review, or whether on the other hand the Sheriff is merely discharging a special and particular function confined to him alone. In every case the answer must be found in the provisions of the statute in question.
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