Petition Of Ramzan Bibi For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2007] CSOH 151 |
| Docket Number | P1525/04 |
| Date | 23 August 2007 |
| Published date | 23 August 2007 |
| Court | Court of Session |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 151 | |
| P1525/04 | OPINION OF LORD KINCLAVEN in the petition of RAMZAN BIBI Petitioner; for Judicial Review of a purported determination of the Scottish Ministers in terms of Section 50(5) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 dated 4 July 2003 Respondents: ________________ |
Petitioner: Barne, Advocate; Drummond Miller WS
Respondents: Mure, Advocate: The Solicitor to the Scottish Executive
23 August 2007
Introduction
[1] My decision in relation to the merits of this petition is contained in my earlier opinion dated 6 October 2006 which is reported at [2006] CSOH 152.
[2] In that opinion I decided inter alia that there had been a breach of the Petitioner's rights under Article 6(1) of the European Convention on Human Rights (the "ECHR") because of unreasonable delay by the Scottish Ministers.
[3] Thereafter, as requested by the parties, the case was put out By Order in relation to further procedure.
[4] This present opinion relates, in essence, to the question of remedy and in particular to the question of reduction.
[5] At the most recent By Order hearing a motion was made by the Petitioner to sustain the Petitioner's first plea-in-law to its full extent and for decree of reduction of the determination of the Scottish Ministers in terms of Section 50(5) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 dated 4 July 2003 ("the determination") in terms of paragraph 3(a) of the Petition.
[6] Mr Barne appeared for the Petitioner and argued that the determination should be reduced.
[7] Mr Mure appeared for the Scottish Ministers to oppose that motion and he argued that there should be no reduction.
[8] The Petitioner was not in a position to address me in relation to subsidiary questions such as "just satisfaction".
[9] However, it was agreed between the parties that, in the absence of reduction, the appropriate course was to put the case out By Order to determine further procedure meantime reserving further questions of "just satisfaction" and damages.
[10] I was prepared to proceed on that basis.
[11] Having taken into account all the arguments presented to me, I have decided to refuse the Petitioner's motion.
[12] I am not satisfied that this in an appropriate case for reduction.
[13] My reasons are outlined below.
Background
[14] At the first hearing, Mr Barne had presented three arguments on behalf of the Petitioner, namely:-
1. that there has been a breach of Article 6(1) of the European Convention on Human Rights (the "ECHR") because of unreasonable delay by the Scottish Ministers;
2. that the Scottish Ministers failed to take into consideration relevant factors; and
3. that the Scottish Ministers acted irrationally.
[15] On behalf of the Scottish Ministers, Mr Wolffe had argued that each of those arguments should be rejected.
[16] Glasgow City Council (the "Council") are the relevant planning authority. The Council have not lodged answers.
[17] I was satisfied that there has been a breach of Article 6(1) because of unreasonable delay by the Scottish Ministers. However, questions of delay aside, I was not satisfied that the Scottish Ministers had failed to take into consideration relevant factors and I was not satisfied that the Scottish Ministers had acted irrationally.
[18] In my earlier opinion, at paragraphs [211] - [212], I stated inter alia:-
"I propose to sustain the first plea-in-law for the Petitioner by granting the declarator sought in paragraph 3(d) of the Petition, namely, that in delaying until 4 July 2003 the Respondents have acted in breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. ... Before doing so, I will hear parties further as requested."
[19] I also stated, at paragraph [237]:-
"I am not satisfied (questions of delay apart) that the Respondents erred in their approach such as to justify reduction of their determination. ...
[20] In the result, at the first hearing, the Petitioner succeeded in relation to her first argument but failed in relation to her second and third arguments (paragraphs [208], [263] and [269]).
[21] I turn now to the Petitioner's motion for reduction.
Authorities and references
[22] At the By Order hearing counsel referred me to the following authorities and references:-
1. Grahame v Magistrates of Kirkaldy (1882) 9R (HL) 91 (particularly Lord Watson at pages 91-93, the Lord Chancellor at pages 96-97, Lord O'Hagan at page 98, Lord Blackburn at page 99 and the order of the House of Lords which is set out on page 100).
2. King v East Ayrshire Council 1998 SC 182 (particularly at page 183F-G and the Lord President (Roger) at pages 194C to 196G).
3. Tehrani v Home Secretary 2006 SLT 1123.
4. Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 (Lord Reed particularly at paragraph 47, page 326H- 327D).
5. Attorney-General's Reference (No. 2 of 2001) [2004] 2 AC 72 (particularly Lord Bingham of Cornhill at paragraphs 9, 23-24, and 30 and Lord Roger of Earlsferry at paragraph 172 - pages 84C-F, 88H to 90B, 91H to 92D and 130G-131E).
6. R v H M Advocate 2003 SC (PC) 21 (particularly at page 22H-23B, Lord Hope of Craighead at paragraphs 53, 59, 66, 69 and 70, Lord Clyde at paragraphs 86 and 97, and Lord Roger of Earlsferry at paragraphs 126 to 128 and 151 - pages 40C-E, 42B-C, 43H-44B, 44G-45D, 49G-50B, 53B-D, 63C-64B and 72A-C).
7. William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901 (particularly the Lord President (Roger) at paragraphs 58 and 61 - page 929A-B and 929H-930D).
8. Malloch v Aberdeen Corporation 1971 SC (HL) 85.
9. London & Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1 (particularly at pages 2-3, the Lord Chancellor at pages 30-31, Lord Fraser of Tullybelton at page 36, and Lord Keith of Kinkel at pages 43-44).
10. Hoffman v South African Airways 2001 (1) SA 1 (particularly Ngcobo J. at paragraphs 42 to 46).
11. Clyde & Edwards, Judicial Review, chapters 23 & 24 (particularly paragraphs 23.29 and 23.30).
12. The Human Rights Bill, White Paper, Chapter 2.
13. Scotland Act 1998 (c. 46), section 57.
14. Human Rights Act 1998 (c. 42), section 6.
15. Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 (c. 9), section 50.
16. Blair, Scots Administrative Law: Cases and Materials, 1999, pages 159 and 574 to 580.
17. Stair Memorial Encyclopaedia, The Laws of Scotland, pages 158, 160-162, and 169-171.
18. Regina (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 particularly pages 673C-674E and Lord Bingham of Cornhill at paragraphs 6 to 11 (page 677D to 680G).
19. Andrew Somerville and Others (Petitioners) v The Scottish Ministers [2006] CSIH 52 (particularly at paragraphs 22, 33-34, 40, 57, 71-72, and 80).
[23] Reference was also made to Lafarge Redland Aggregates Ltd v Scottish Ministers 2001 SC 298.
[24] For ease of reference, it might also be helpful to set out the following provisions in a little more detail.
Article 6(1) ECHR
[25] Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention") provides that:-
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
The Human Rights Act 1998
[26] Section 6(1) of the Human Rights Act 1998 provides:-
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
[27] Section 8 of the Human Rights Act 1998 relates to "Judicial remedies" and is to the following effect:-
"8(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including - (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining - (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention.
(5) A public authority against which damages are awarded is to be treated-(a) in Scotland, for the purposes of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made; (b) for the purposes of the Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
(6) In this section-'court' includes a tribunal; 'damages' means damages for an unlawful act of a public authority; and 'unlawful' means unlawful under section 6(1)."
[28] Section 57(2) of the Scotland Act 1998 provides that:-
"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."
[29] Section 103(1) of the Scotland Act 1998 also provides that:-
"Any decision of the Judicial Committee in proceedings under this Act shall be stated in open court and shall be...
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