Ramzan Bibi For Judicial Review Of A Purported Determination Of The Scottish Ministers In Terms Of Section 50(5) Of The Planning (listed Buildings And
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2006] CSOH 152 |
| Court | Court of Session |
| Docket Number | P1525/04 |
| Date | 06 October 2006 |
| Published date | 06 October 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 152 | |
| P1525/04 | OPINION OF LORD KINCLAVEN in the cause 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: W J Wolffe, Advocate: The Solicitor to the Scottish Executive
6 October 2006
Introduction
[1] This is a Petition for Judicial Review of a purported determination made by the Scottish Ministers in terms of Section 50(5) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 on 4 July 2003.
[2] The determination relates to the recovery from the Petitioner of the expenses involved in emergency works undertaken by Glasgow City Council on the Petitioner's property at 7 James Street, Glasgow.
[3] The Petitioner challenged the determination on various grounds which were set out in some detail in the Petition as amended.
[4] Most of the Petitioner's complaints were directed towards Historic Scotland. Historic Scotland is an agency within the Scottish Executive Education Department and is responsible to Scottish Ministers for, inter alia, safeguarding the nation's historic environment.
[5] The Scottish Ministers opposed the Petition and lodged Answers.
[6] Both parties lodged a substantial number of productions.
[7] At the first hearing, Mr Barne appeared for the Petitioner. Mr Wolffe appeared for the Scottish Ministers. There was no appearance for Glasgow City Council.
[8] In essence, Mr Barne 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.
[9] Mr Wolffe argued that each of those arguments should be rejected.
[10] In the whole circumstances and for the reasons outlined below, I am satisfied 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.
[11] 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.
[12] In the result, as requested by both parties, I shall put the case out "By Order" for a hearing on further procedure.
[13] I would outline the background and summarise my reasons as follows.
The Parties
[14] The Petitioner is Ramzan Bibi. She was heritable proprietor of 7 James Street, Glasgow, which is the "Property" concerned.
[15] The Respondents are the Scottish Ministers.
[16] Glasgow City Council (the "Council") are the relevant planning authority in terms of chapter V of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 ("the 1997 Act"). The Council have not lodged answers.
The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997
[17] The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (the "1997 Act") is central to this case. It came into force on 27 May 1997.
[18] Section 28 of the 1997 Act relates to listed building purchase notices. In certain circumstances (where listed building consent is refused or granted subject to conditions, or is revoked or modified by an order under section 21 or 24) the owner or lessee of the building may serve on the planning authority a notice (referred to as a "listed building purchase notice") "requiring that authority to purchase his interest in accordance with sections 29 to 33 of the Act".
[19] Section 49 of the 1997 Act relates to urgent works to preserve unoccupied listed buildings.
[20] Section 49 provides inter alia that:-
"(1) A planning authority may execute any works which appear to them to be urgently necessary for the preservation of a listed building in their district. ...
(3) The works which may be executed under this section may consist of or include works for affording temporary support or shelter for the building. ...
(5) The owner of the building shall be given not less than 7 days' notice in writing of the intention to carry out the works.
(6) The notice shall describe the works proposed to be carried out."
[21] Section 50 of the 1997 Act relates to the recovery of expenses of works under section 49.
[22] Section 50 provides inter alia that:-
"(1) This section has effect for enabling the expenses of works executed under section 49 to be recovered.
(2) The planning authority ... may give notice to the owner of the building requiring him to pay the expenses of the works.
(3) Where the works consist of or include works for affording temporary support or shelter for the building -
(a) the expenses which may be recovered include any continuing expenses involved in making available apparatus or materials used, and
(b) notices under subsection (2) in respect of any such continuing expense may be given from time to time.
(4) The owner may within 28 days of the service of the notice represent to (the Respondents) -
(a) that some or all of the works were unnecessary for the preservation of the building,
(b) in the case of works affording temporary support or shelter, that the temporary arrangements have continued for an unreasonable length of time, or
(c) that the amount specified in the notice is unreasonable or that the recovery of it would cause him hardship.
and (the Respondents) shall determine to what extent the representations are justified.
(5) (The Respondents) shall give notice of (their) determination, the reasons for it and the amount recoverable -
(a) to the owner of the building and
(b) to the planning authority if they carried out the works."
The Building (Scotland) Act 1959
[23] The Building (Scotland) Act 1959 (the "1959 Act") was also referred to by counsel.
[24] In particular, section 13 of the 1959 Act relates to action to be taken in respect of buildings found to be dangerous.
[25] Section 13 provides inter alia that:
"(1) If it appears to the local authority that any building is dangerous ... they shall forthwith -
(c) serve on the owner of the building a notice requiring him within a period of seven days from the service of the notice to begin, and within such further period as may be specified in the notice, being a period of not less than twenty-one days from the expiration of the first mentioned period, to complete to the satisfaction of the local authority, such operations for the repair, securing or demolition of the building as may be so specified, being operations necessary in the opinion of the local authority to remove the danger."
[26] Sections 16 of the 1959 Act makes provision for an appeal to the sheriff in relation to inter alia any order under section 13(2) of the Act requiring the execution of operations.
The Determination in the Present Case
[27] In the present case, by determination dated 4 July 2003 (the "Determination"), the Respondents specified that the amount recoverable from the Petitioner by the Council was £53,056.88, as set out in an invoice sent to the Petitioner by the Council dated 13 July 1998.
[28] The determination is Production No. 6/1 (and 7/67) of Process. I need not rehearse its full terms which I take as read.
The Pleadings
[29] The current Petition incorporates amendments made on 15 February 2006.
[30] The Answers for the Scottish Ministers are No 13 of Process. The Answers were adjusted so as to delete the last sentence of Answer 6 ("The last of these ... November 2002.").
The Orders Sought
[31] So far as relevant, the Petitioner seeks the following orders (in paragraph 3 of the petition):-
3(a) Reduction of the Determination; and ...
3(d) Declarator 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.
[32] The Petitioner also craves the court to pronounce such further order, decrees or orders (including an order for expenses) as may seem to the court to be just and reasonable in all the circumstances of the case.
The Grounds of Challenge
[33] In summary, the Petitioner challenges the Determination on the following grounds:-
(a) that the Determination was ultra vires of the Respondents;
(b) that the Determination proceeded on an error of law;
(c) that the Determination proceeded without taking into account material considerations;
(d) that the Determination was wholly unreasonable and perverse; and
(e) that the Respondents have acted in breach of the Petitioner's rights in terms of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
[34] Those propositions can be distilled down to the three arguments which were advanced by Mr Barne.
[35] As each case requires to be considered according to its own particular facts and circumstances it might be helpful to set out some of the background as described by the Petitioner.
The Background - as described by the Petitioner
[36] The Property concerned (according to paragraph 5 of the petition) is a category B listed building. It had been the Logan and Johnstone School of Domestic Economy and was then the Dolphin Arts Centre. In November 1996, the Property was seriously damaged by fire. On 27 March 1997, the Council served a notice on Sultan Mehmood "as owner/tenant" of its intention to execute works urgently necessary for the preservation of the Property in terms of section 97 of the Town and Country Planning (Scotland) Act 1972 (the "1972 Act"), as amended. The Petitioner had signed a power of attorney in favour of Mr Mehmood in 1995. In terms of the notice, the necessary remedial works were stated to be:
"Erect such...
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Petition Of Ramzan Bibi For Judicial Review
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