McCalls Ltd v Aberdeen City Council
| Jurisdiction | Scotland |
| Judge | Lady Carmichael |
| Judgment Date | 10 July 2020 |
| Neutral Citation | [2020] CSIH 41 |
| Court | Court of Session (Inner House) |
| Date | 10 July 2020 |
| Docket Number | No 2 |
[2020] CSIH 41
Second Division
Lady Carmichael
Dilworth v Commissioner of Stamps [1899] AC 99
Docherty (T) Ltd v Monifieth Town Council 1970 SC 200; 1971 SLT 13; 1970 SLT (Notes) 69
Drika BVBA v Giles [2018] CSIH 42; 2018 SLT 823
Elmford Ltd v City of Glasgow Council (No 2) 2001 SC 267; 2001 SLT 725
Gray v St Andrews and Cupar District Committees of Fifeshire County Council 1911 SC 266; 1910 2 SLT 354
Logan v Wang (UK) Ltd 1991 SLT 580
Macdonald v Aberdeenshire Council [2013] CSIH 83; 2014 SC 114; 2014 SLT 2; 2014 SCLR 111; 2014 Rep LR 2
Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2004] 2 AC 42; [2003] 3 WLR 1603; [2004] 1 All ER 135; [2004] BLR 1; 91 Con LR 1; [2004] Env LR 25; [2004] HRLR 10; [2004] UKHRR 253; (2003) 50 EG 95 (CS); (2004) 101 (4) LSG 32; (2003) 153 NLJ 1869; 147 SJLB 1429; [2003] NPC 150; The Independent, 9 December 2003; The Times, 5 December 2003
Mitchell v Department for Transport sub nom Mott MacDonald Ltd v Department for Transport [2006] EWCA Civ 1089; [2006] 1 WLR 3356; [2006] NPC 97; The Times, 17 August 2006
Sutton London Borough Council v Edwards [2016] EWCA Civ 1005; [2017] PIQR P2
Transco plc v Glasgow City Council 2005 SLT 958; 2005 SCLR 733
West v Secretary of State for Scotland 1992 SC 385; 1992 SLT 636; 1992 SCLR 504; The Times, 11 June 1992; The Scotsman, 5 May 1992
Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62; 2019 SC 111; 2018 SLT 959; [2019] 1 CMLR 23; The Times, 12 September 2018
Bennion, FAR, Statutory Interpretation: A code (7th Bailey and Norbury ed, LexisNexis, London, 2017), para 21.1
Standards for Highways, Design Manual for Roads and Bridges (TSO, London, 2002) (Online: https://standardsforhighways.co.uk/dmrb/ (3 September 2020))
Roads and streets — Scope of roads authority's duty of maintenance — Whether duty to manage and maintain roads extended to property which was not a road — Roads (Scotland) Act 1984 (cap 54), sec 1(1)
Process — Petition for judicial review — Appropriate structure of application — Court of Session Act 1988 (cap 36), sec 45
McCalls ltd brought a petition for judicial review seeking, inter alia, an order under sec 45(b) of the Court of Session Act 1988 ordaining Aberdeen City Council to fulfil its duty of maintenance under sec 1(1) of the Roads (Scotland) Act 1984 in relation to a bridge over Windmill Brae, Aberdeen. After a substantive hearing, on 29 May 2019, the Lord Ordinary (Carmichael) refused the petition on 12 November 2019 ([2019] CSOH 88; 2020 SLT 55). The petitioner reclaimed.
Section 1(1) of the Roads (Scotland) Act 1984 (cap 54) provides, inter alia, “a local roads authority shall manage and maintain all such roads in their area as are for the time being entered in a list … prepared and kept by them under this section; and for the purposes of such management and maintenance … they shall, subject to the provisions of this Act, have power to reconstruct, alter, widen, improve or renew any such road or to determine the means by which the public right of passage over it, or over any part of it, may be exercised.” Section 151(1) provides, inter alia, that “road” includes any bridge over which a road passes.
Section 45 of the Court of Session Act 1988 (cap 36) provides, “The Court may, on application by summary petition– … (b) order the specific performance of any statutory duty, under such conditions and penalties (including fine and imprisonment, where consistent with the enactment concerned) in the event of the order not being implemented, as to the Court seem proper.”
Rules 58.1 and 58.2 of the Rules of Court (Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69))) provide that an application under sec 45(b) of the 1988 Act must be made by petition for judicial review.
The petitioner traded from premises partly located in vaults formed by the arches of a bridge over Windmill Brae, Aberdeen. Bridge Street passed over the top of the bridge. The owner of the bridge was unknown. The petitioner maintained that its premises were being damaged due to the failure of the respondent, as roads authority, to maintain Bridge Street. Its position was that, as a result of this failure, water was passing down the bridge and damaging its premises. It called on the respondent to fulfil its duty of maintenance under sec 1(1) of the 1984 Act by, inter alia, installing additional gullies and a waterproof membrane. By letter dated 6 March 2018, the respondent stated that its duty extended only to doing what was required to keep the road safe and that none of the works called for by the petitioner were necessary for that purpose.
The petitioner brought a petition for judicial review, seeking: (1) production and reduction of, and declarators in relation to, the letter dated 6 March 2018; and (2) an order under sec 45(b) of the 1988 Act ordaining the respondent to implement its duty of maintenance. The Lord Ordinary refused the petition. She held that the duty to manage and maintain a road did not involve anything more than doing what was required to keep the road in a proper state of repair. The petitioner reclaimed.
The petitioner argued that, correctly interpreted, the 1984 Act imposed a duty on a roads authority to have regard to the actual or potential impact of the condition of a road on premises in the vicinity of the road and on the owners and occupiers of such premises. A road could not be said to be in good order and repair if water draining from it was causing damage to neighbouring properties. Consideration had to be given to more than merely the condition of the road surface. The petitioner's interpretation was supported by the width of the language of, and by the extensive powers conferred on a roads authority by, the 1984 Act. It was consistent with Art 1 of Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms.
The respondent countered that its duty qua roads authority did not extend beyond the requirement to maintain a road in a proper state of repair for the benefit of users of the road. While the powers conferred on the respondent by the 1984 Act were more than those required to comply with that duty, that did not have the effect of extending the duty. There was no inconsistency with Art 1 of Protocol 1 of the Convention.
Held that the duty of a roads authority under sec 1(1) of the 1984 Act was to do everything required to secure that a road was in a condition suitable to afford reasonably safe and convenient passage to the public. Although that duty was not limited to maintaining the road surface, anything done to maintain the road had to be for the purpose of keeping the means of passage reasonably safe and convenient for the public; while a roads authority had powers to carry out works that might benefit neighbouring properties, there was no duty to have regard to that possibility when considering how to maintain the road (paras 43, 44, 46, 47); and reclaiming motion refused.
Observed that it was incorrect and unnecessary to base an application under sec 45(b) of the 1988 Act on traditional grounds for judicial review; in cases where a party sought to review an act or omission, it was the legality of the act or omission that mattered, not the legality of any preceding decision. Properly focused, the unlawfulness alleged in the present case had been a failure to act, rather than a decision not to act and, as it had had no impact on any party's rights, there had been no need to seek reduction of the letter dated 6 March 2018 (paras 36–39).
T Docherty Ltd v Monifieth Town Council 1970 SC 200, West v Secretary of State for Scotland1992 SC 385 and Macdonald v Aberdeenshire Council2014 SC 114considered and Transco plc v Glasgow City Council2005 SLT 958explained.
The cause called before the Second Division, comprising the Lord Justice Clerk (Dorrian), Lord Brodie and Lord Woolman, for a hearing on the summar roll, on 16 June 2020.
At advising, on 10 July 2020, the opinion of the Court was delivered by Lord Brodie—
Opinion of the Court—
[1] This is a reclaiming motion against the Lord Ordinary's refusal of a petition for judicial review ([2019] CSOH 88). The issue it raises is the scope of the duty imposed on a roads authority by sec 1(1) of the Roads (Scotland) Act 1984 (cap 54).
[2] The petitioner and reclaimer is a limited company. It is in the business of selling and hiring high-quality Highland wear and related goods. It trades from premises made up of adjoining subjects at 11, 11A, 15, 17 and 19 Bridge Street Aberdeen, 2 to 4 and 6 Windmill Brae Aberdeen and 2 to 6 College Street, Aberdeen (‘the premises’). Part of the premises is located within the vaults formed by the arches of the bridge structure which makes up Bridge Street, Aberdeen (‘the Bridge’) and carries the public road. Windmill Brae runs underneath the Bridge. Bridge Street runs uphill from the vicinity of the railway station to its junction with Union Street. It is understood that the Bridge was built by a railway company to facilitate access to the station. The petitioner is the proprietor of part of the subjects forming the premises. The remaining parts are owned by Iain and Kathleen Hawthorne, who are averred to be the petitioner's ‘principals’. Although the relevant titles have been examined, neither the petitioner nor the respondent has been able to identify the present owner of the arches of the Bridge.
[3] Parts of the premises have suffered the ingress of water. The petitioner maintains that this is because the respondent, Aberdeen City Council, the roads authority, has failed duly to carry out its duty under sec 1 of the 1984 Act, to maintain Bridge Street. The petitioner claims standing, as the owner and occupier of property which is being adversely affected by this failure, to seek certain remedies with a view to compelling the...
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