Boyack Homes Limited V. Fife Council
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Wheatley,Lord Hardie |
| Neutral Citation | [2009] CSIH 7 |
| Court | Court of Session |
| Date | 10 February 2009 |
| Published date | 16 February 2009 |
| Docket Number | XA155/07 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Wheatley Lord Carloway Lord Hardie | [2009] CSIH 7 XA155/07 OPINION OF THE COURT delivered by LORD WHEATLEY in the cause BOYACK HOMES LIMITED Pursuers and Appellants; against FIFE COUNCIL Defenders and Respondents: _______ |
Act: Francis; Morton Fraser LLP
Alt: Clark Q.C.; HBJ Gateley Wareing (Scotland) LLP
10 February 2009
[1] The pursuers and appellants are a firm of house builders who in 2001 were engaged in a private housing development adjacent to Holly Road, Leven, Fife. The development required the building of new roads which at one point linked up with the existing thoroughfare at Holly Road. The defenders and respondents are the relevant roads authority and the appellants required to obtain a construction consent from them to build the roads within the development.
[2] Some time prior to July 2001 the appellants applied to the respondents for the necessary construction consent. By letter dated 27 July 2001 the respondents wrote to the design company which acted for the appellants intimating that one of the conditions of the construction consent would be that the appellants should provide the street lighting for the development to the standard required by the respondents. A copy of the respondents' requirements guidelines and specifications was enclosed with the letter. The respondents also offered at the same time to provide a design and supervision service for the installation of the lighting for a fee. The design drawings would show various details including the position of the lamp standards. The appellants, by letter of 9 October 2001, elected to use the design service offered by the respondents. The relevant design drawings were sent by the respondents to the appellants on 19 November 2001. The design drawings showed that three lamp standards on Holly Road at its junction with the development required to be removed, and replaced by five new lamp standards. It is agreed that the provision of the five new lamp standards was entirely a consequence of the appellants' development; it had become necessary to upgrade the lighting because of safety and amenity requirements at the junction. At all material times the respondents had a statutory obligation to provide and maintain lighting at Holly Road in terms of section 35(1) of the Roads (Scotland) Act 1984.
[3] By letter dated 12 June 2002 the respondents told the appellants that they intended to grant construction consent with a condition that the appellants install the improved lighting on Holly Road. The respondents had been aware of this condition since October 2001 as part of the design contract and had already in fact installed the new lamp standards by 12 June 2002. The respondents' letter asked the appellants to advise them if they wished to be heard on the conditions of the consent within 21 days, but the appellants did not wish to be heard. By fax dated 19 June 2002 the appellants asked the respondents to confirm their agreement or otherwise to the conditions which were to be applied to the construction consent. The relevant condition referred to in the fax dated 19 June 2002 was in the following terms:
"1. The whole of the work shall be carried out at the Developer's own expense in a consistent and workman like manner and in accordance with:- '....
(b) the Council's "Transportation Development Guidelines" (details of which can be obtained from the Council's Head of Transportation) and, as regards road lighting, the design provided or approved by the Head of Transportation;'"
It is this condition, which was in fact repeated in the construction consent issued on 1 July 2002, that is said by the appellants to be ultra vires of the respondents. By letter dated 20 June 2002 the appellants expressly agreed to the conditions to be included in the construction consent including condition 1(b) quoted above and sought a prompt award of the consent. In terms of section 21(6) of the Roads (Scotland) Act 1984, the appellants had 28 days in which to appeal against any of the conditions to the Secretary of State but they did not do so. On 1 July 2002 the respondents issued to the appellants the relevant construction consent, including the condition that the respondents should be responsible for installing the upgraded lighting in Holly Road. Parties are agreed that this condition in the construction consent was in effect preceded in identical terms by a contract for lighting services between the respondents and the appellants in terms of the earlier letters and drawings exchanged in October 2001.
[4] It is accepted that prior to 20 June 2002 all of the works referred to in condition 1(b) and the associated drawings had in fact been completed by the appellants. The construction consent, which incorporates condition 1(b), was granted to the appellants by the respondents on 1 July 2002. The appellants now maintain that the incorporation of the condition to provide the improved lighting in Holly Road at the junction which appears in the construction consent and in the original contract for the provision of lighting services was ultra vires of the respondents, and now seek recompense. Counsel for the appellants also argued that in terms of the contract for the design of the improved lighting at Holly Road, there must be an implied term that any specification in the design drawings to meet the respondents' requirements was a reference to lawful requirements and would not require the appellants to do anything that the respondents were in law bound to do.
[5] In his judgment against which the present appeal is taken, the sheriff at Kirkcaldy concluded that the pursuers' case rested on the proposition that section 35(1) of the 1984 Act imposed an absolute duty on the defenders as the road authority. Section 35(1) provides:
"A local roads authority shall provide and maintain lighting for roads, or proposed roads, which are, or will be, maintainable by them and which in their opinion ought to be lit."
The sheriff was of the view that the pursuers' contention imposed too high a duty on the defenders and he could see no equitable reason why the pursuers should not be liable for the re-siting of the lighting in Holly Road, which was caused solely by the requirements of the pursuers' development. Further, the sheriff thought that the pursuers' interpretation of section 35 as imposing an absolute duty on the defenders meant that section 48 of the Act, which allows a roads authority to enter into an agreement with any person willing to contribute to the construction or improvement of a road, would have no meaning. Further, the sheriff could find no reason or basis for concluding that any implied term as argued for by the pursuers should be incorporated into the contract.
[6] The principal question in the appeal came to be whether the incorporation of the condition that the appellant should provide and pay for the improved lighting on Holly Road was unlawful and improper, and ultra vires of the respondents. Both parties relied on passages from Stewart v Perth & Kinross Council 2004 S.C. (H.L.) 71 for support for their respective positions.
[7] In that case, a local authority had established a licensing scheme for second hand car dealers in terms of the Civic Government (Scotland) Act 1982. Section 24 of that Act provides that an authority may attach conditions to a licence requiring the keeping of records relating to the dealer's stock in trade. Paragraph 5 of schedule 1 to the Act allowed the authority to grant or renew licences subject to "such reasonable conditions as it thinks fit". The purpose of the scheme was to deter, and assist in the detection of, stolen cars in the second hand market. The local authority imposed conditions on...
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