Elmford Limited For Judicial Review Of Actings By City Of Glasgow Council (no. 2)
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Date | 12 September 2000 |
| Court | Court of Session |
| Published date | 04 November 2002 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD CLARKE in Petition of ELMFORD LIMITED Petitioners; for Judicial Review of actings by City of Glasgow Council (No.2) ________________ |
Petitioners: R.L. Martin, Q.C., R.A. Smith, Q.C.; Paull & Williamsons
Respondents: P.S. Hodge, Q.C., Upton; Edward Bain, Solicitor, The City of Edinburgh Council
12 September 2000
[1]In this petition for judicial review, the matter came before me for a continued First Hearing. The parties were, ultimately, at one that the issues arising could be determined by me, without the need for further procedure.
[2]In the petition the petitioners seek two declarators. The first is that they are entitled to take vehicular and pedestrian access and egress across a certain strip of land between the metalled surface of a link road (which is owned and controlled by the respondents as Roads Authority) and land belonging to the petitioners to the south of that link road. The second declarator sought is that the respondents' actings in purporting to charge or obtain value from, or otherwise prevent, the petitioners in respect of taking such access and egress are ultra vires. In the petition, the petitioners also seek an order ordaining the respondents to determine the petitioners' application for road construction consent dated 6 May 1999, under section 21 of the Roads (Scotland) Act 1984. In the event, both sides informed me that they were in agreement that the court should not be invited to pronounce such an order and should simply determine whether or not the declarators sought should be granted.
The factual background to the petition
[3]The petitioners are a Jersey based company who are involved in the proposed development of land which they own lying to the south of the Robroyston Road/M80 link road, otherwise known as Saughs Road. The development involves a road services station. The respondents are the roads authority for the said road. They are also the planning authority for the area in which the petitioners' land and the said road lie. Between the land owned by the petitioners and the metalled surface of the said road and to the south of the said surface there lies a verge, an embankment, and a narrow strip of land. In the petition the verge, the embankment and the narrow strip of land are all embraced in the description "the strip" and when I hereinafter refer to "the strip" or "the said strip", it should be read as referring to all of these components. I shall make reference elsewhere, however, specifically to the narrow part of the strip which lies to the south of the embankment.
[4]It was accepted by the petitioners that all of the land, comprising the metalled surface of the road, the verge, the embankment and the narrow strip of land are presently in the ownership of the respondents. The petitioners, for the purpose of their proposed development, require vehicular and pedestrian access over the said strip of land. They consider that they are entitled to this as of right. The respondents have disputed this. The respondents' position is that the land in question being, as it is, in their sole ownership, access and egress over it is something which they have the right to prevent, control or to grant for a consideration. The land comprising the metalled road surface, the verge, the embankment and the narrow strip of land were acquired by the respondents' statutory predecessors, Strathclyde Regional Council, by virtue of a compulsory purchase order, confirmed by the Secretary of State on 22 May 1986 and recorded 22 August 1986 and by general vesting declaration by Strathclyde Regional Council dated 20 October 1986. This order was made under, and in terms of, powers conferred by sections 29 and 35 of the Roads (Scotland) Act 1984. Once the road surface had been constructed by the respondents' predecessors, the respondents' predecessors made an entry in the list of roads, publicly maintained under section 1 of the Roads (Scotland) Act 1984, in respect of it as entry 8479 on that list. It is accepted by the petitioners that the physical description of the land as contained in that listing, does not include the embankment, nor the narrow strip of land to the south of the embankment, nor indeed, as I understood the position, the whole of the verge area. Apart from the metalled road surface itself, the description includes "adjacent 3 metre verges and footway".
[5]The land, prior to being so acquired, was in agricultural use. The petitioners and the respondents, in their role as statutory authority, have been in negotiation for some time regarding the proposed development and there have been a number of agreements prepared in draft. Throughout, however, the position of the respondents has been that the petitioners require their consent with regard to access and egress over the said strip.
[6]On a previous occasion the petitioners brought proceedings against the respondents in relation to the respondents seeking to prevent the petitioners from taking access to their land or, at least, seeking to demand some form of consideration for the granting of any such access, from the said link road at another point, fairly close to the locus to which the present proceedings relate. Those proceedings resulted in a interlocutor being pronounced by the Lord Ordinary, Lady Cosgrove, on 7 January 1999, of consent, the effect of which was that the petitioners were held to have a right of access over the particular area of ground to which those proceedings related.
Competency of the petition
[7]The respondents have a plea-in-law, which is numbered 2, to the effect that "there being no decision reached by the respondents relevant to the matters condescended upon, the petition should be dismissed". In opening his submissions, in reply, junior counsel for the respondents indicated that the respondents were seeking to rely on that plea-in-law. He made reference to certain authorities in support of the proposition that, since there was no identifiable decision of the respondents as such, there was nothing that was amenable to judicial review. Overnight, however, having taken instructions on the matter, the respondents' position altered in relation to this point and I was informed that they were prepared to concede, for the purpose of the present proceedings, that the question that arose was one which was amenable to judicial review proceedings. In making that concession it was said that the respondents did not want it to be regarded as a precedent which could be held against them in other subsequent proceedings. The court, itself, of course, has to be satisfied that a concession of this sort, in respect of competency, was correctly made and that resort to the court's judicial review jurisdiction is being competently made. Senior counsel for the petitioners fully recognised that and in his speech, in reply, he made submissions in relation to the competency of the petition. In the first place, he stressed that the basis of the petition was an alleged right in the petitioners to connect to a particular road which the respondents, as a public authority, were seeking to obstruct. The petitioners' position was that the strip of land was incorporated in what was a road and that therefore they had, as members of the public, a right of access over it. Since 1996 the respondents and their statutory predecessors had consistently denied that the strip of land formed any part of a public road and that therefore the petitioners were not entitled, as of right, to take access over it. That position had been reiterated in correspondence and discussion over that period of time. It was the position adopted by the respondents in their answers to the petition. While there was no actual formal decision of the respondents, which the petitioners were seeking to reduce, the respondents' consistent course of conduct to date was something that was amenable to judicial review. Moreover, what the petitioners were seeking was in effect the performance by the respondents of their statutory duty to allow the petitioners to take access over the strip of land. Rule of Court 58.3(1) provides that an application for specific performance of a statutory duty under section 45(b) of the Court of Session Act 1988 should be made by petition for judicial review. Senior counsel for the petitioners also referred me to an unreported decision of Lord Milligan in the petition of McLagan Investments Limited in which, apparently, his Lordship repelled a plea to the competency which had been taken in similar circumstances.
[8]I am satisfied that the concession made by the respondents was correctly made. While, in the majority of cases, no doubt, judicial review is concerned with attacking what can be identified as a decision taken by a person or body, it has to be kept in mind that Rule of Court 58 simply provides the procedural machinery for an application to the supervisory jurisdiction of the court - see Rule of Court 58.3(1). As I understand it, the supervisory jurisdiction is not in some way restricted by a technical rule that it is only something identifiable as a decision as such that is amenable to it. While it is true that Rule of Court 58.4(b) refers to "the decision in question", in Rule of Court 58.6(4), the wider basis of the jurisdiction is recognised where it is stated
"where the decision, act or omission in question and the basis of which it is complained of is not apparent from the documents lodged with the petition, an affidavit shall be lodged stating the terms of the decision, act or omission and the basis on which it is complained of".
In the present case the petitioners are seeking declarators of rights which they claim a public authority has, in exercising its public functions, wrongly denied to them, or has refused to recognise. In my opinion, the averments of the petitioners to that effect provide a competent basis for the exercise of the court's...
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