Sheltered Housing Management Limited V. A Decision Of The Lands Tribunal For Scotland, Communicated To The Appellants On 9th June 2008, Margaret Jackson, Respondent
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Nimmo Smith,Lord Reed |
| Neutral Citation | [2008] CSIH58 |
| Date | 11 November 2008 |
| Docket Number | XA108/08 |
| Court | Court of Session |
| Published date | 11 November 2008 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Nimmo Smith Lord Reed |
[2008] CSIH58 XA108/08 OPINION OF THE COURT delivered by LORD OSBORNE in the Appeal under Section 11(7)(b) of the Tribunals and Inquiries Act 1992 by SHELTERED HOUSING MANAGEMENT LIMITED Appellants; against A decision of the Lands Tribunal for Scotland, communicated to the Appellants on 9 June 2008 (Margaret Jack, Respondent) _______ |
Appellants: Clark, Q.C.; Balfour + Manson, LLP
Respondent: J. J. Mitchell, Q.C.; Paull & Williamsons
11 November 2008
The background circumstances
[1] This appeal under section 11(7)(b) of the Tribunals and Inquiries Act 1992, "the 1992 Act", bears to be an appeal against a decision of the Lands Tribunal for Scotland, communicated to the appellants on 9 June 2008. It arises out of proceedings before the Lands Tribunal initiated by an application under sections 34(3) and 90(1)(c) of the Title Conditions (Scotland) Act 2003, "the 2003 Act", to preserve unvaried the title conditions in a 1986 Deed of Conditions in relation to a
sheltered housing development. The application was made by the appellants, who were the managers of that development. They were the superiors. They are the owners of residual property, including the warden's flat, warden's office, guest bedrooms and other facilities in the building. A two-thirds majority of the flat proprietors have, however, exercised their right under section 28 of the 2003 Act to appoint different managers and have also executed a new deed replacing the Deed of Conditions referred to. This proposed deed sets out a new set of conditions bringing the title position up-to-date and changing the basis of arrangements between the managers and the flat owners. Generally, the appellants did not object to these parts of the proposed deed. However, they did object to new provisions restricting the use of the residential property owned by them to use ancillary to the sheltered flats. That property was previously unburdened. They also complained of the level fixed in the proposed deed of a "rental" payment by the flat owners to them in respect of use of their property. The appellants submitted that certain of the burdens sought to be imposed were not valid real burdens or community burdens, making the deed and the procedure to impose it incompetent. They also invoked the tests set out in section 98(b) of the 2003 Act for preserving the existing deed. The respondent was the proposer of the new deed, being a representative flat owner who was also a resident and the chairperson of the residents' committee.
[2] After a hearing of evidence on 21 - 23 September and 2 October 2006, the Lands Tribunal issued what bore to be an "Opinion", on 5 January 2007, in which the Tribunal stated that it had "decided" that the proposed deed did create valid real burdens which were community burdens and was competent; and that the appellants and applicants had failed to establish either of the conditions set out in section 98(b) of the 2003 Act. The application for preservation accordingly failed. At the conclusion of this Opinion the Lands Tribunal stated:
"We accordingly refuse the application and shall make the appropriate order under section 90(1) varying the community burdens accordingly."
This Opinion bore a certificate signed by the Clerk to the Lands Tribunal in the following terms:
"Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 5 January 2007."
[3] Thereafter, the Lands Tribunal considered the issue of compensation arising out of the decision just referred to. Against the background of the decision by the Lands Tribunal to refuse the application for preservation, which it did in its Opinion issued on 5 January 2007, the Tribunal recognised that the applicants were entitled to apply for compensation in broadly the same way, and subject to the same test, as owners of benefited property who had opposed discharge or variation of a title condition. The applicants made such a claim on the basis that they would suffer substantial loss or disadvantage in consequence of the variation which the Tribunal, having refused their application to preserve, would make. A hearing on the claim for compensation took place on 14 August 2007. The Tribunal accepted that the applicants would suffer some loss and decided that it was just to award compensation of £9,178, the lowest of the alternatives claimed. That decision was set out in what bore to be an "Opinion" issued to the parties on 11 October 2007. In it the Lands Tribunal "decided" that it would direct the respondent to pay the applicants compensation in the sum mentioned. The position was that the respondent did not require to consent, in terms of section 90(9) of the 2003 Act, and could alternatively choose not to proceed with the proposed deed. At the request of the solicitor acting for the respondent, time was allowed to the respondent to consider that matter. In the Opinion issued on 11 October 2007 the Lands Tribunal noted that there was agreement by both parties with the Tribunal's draft Order implementing its decision on the merits. Any motions in relation to expenses were to be addressed in written submissions. That Opinion bore a certificate signed by the Clerk to the Lands Tribunal in the following terms:
"Certified a true copy of the Opinion of the Lands Tribunal for Scotland intimated to parties on 11 October 2007."
[4] In what bears to be a "Note" issued to parties on 9 June 2008, the Lands Tribunal made certain decisions in connection with the expenses of the proceedings, on the basis of written submissions. It is unnecessary to refer to the details of those decisions, which are set out in paragraph (3) of the Note on page 73 of the Appendix to the appeal. Once again, the Note bore a certificate signed by the Clerk to the Tribunal in the following terms:
"Certified a true copy of the decision of the Lands Tribunal for Scotland intimated to parties on 9 June 2008."
[5] Also on 9 June 2008 the Lands Tribunal issued what bears to be an "Order" signed by members of the Tribunal. That document, after narrating in detail the events which we have already described, stated that the Tribunal:
"DO HEREBY (First) REFUSE the application and accordingly VARY the said community burdens in the Deed of Conditions dated and recorded aforesaid by deleting them in their entirety and substitute in lieu thereof the provisions of clauses 1 to 11 of the proposed deed, which are in the following terms:
... (Here the Tribunal narrated the clauses concerned)
... (Second) DIRECT that the respondent pays to the Applicants the sum of ... (£9,178) by way of compensation in terms of section 90(7)(a) of the Act; and FURTHER DIRECT that unless the said sum is so paid within the period of six months from the date hereof, this Order shall be void on the expiry of the said period of six months; and (Third) (i) FIND the Applicant liable to the Respondent in her expenses of the application (under exception of the claim for compensation), with a 40% increase in the fees authorised by the Sheriff Court Table of Fees; (ii) FIND the Respondent liable to the Applicants in their expenses referable to the claim for compensation, from the date of that submission onwards; all of which expenses shall be on the Sheriff Court scale and which failing agreement, shall be taxed by the Auditor of Aberdeen Sheriff Court; (iii) sanction the employment of junior counsel; and (iv) CERTIFY the employment of Mr G MacDonald, FRICS and Mr J Begg, MRICS as skilled witnesses."
There was appended to the foregoing Order a schedule, the contents of which are, for present purposes, immaterial, which bore a certificate in the following terms:
"This is the schedule referred to in the foregoing Order of the Lands Tribunal dated 9 June 2008".
That certificate was signed by members of the Tribunal.
[6] In their appeal to this court, having narrated that the appeal under section 11(7)(b) of the 1992 Act was against "a decision of the Lands Tribunal for Scotland, communicated to the appellants on 9 June 2008", the appellants go on to set forth the grounds of the appeal. In paragraphs 1 to 3 inclusive of the grounds, the appellants set forth several criticisms of the Opinion of the Lands Tribunal, dated 5 January 2007, alleging errors in law. In paragraph 4 of the grounds of appeal, the appellants allege that the Tribunal erred in certain respects in its Opinion in relation to compensation, dated 11 October 2007.
[7] In her Answers to the appeal, the respondent responds to the grounds of appeal in this way. In relation to the criticisms of the Opinion of the Tribunal, dated 5 January 2007, she avers that the Tribunal gave its decision on the matters with which that Opinion dealt in terms of section 11 of the 1992 Act and Rule 27 of the Lands Tribunal for Scotland Rules 2003, in writing and with a statement of reasons. She avers that that decision was intimated to the parties on or about 5 January 2007. She states that it was appealable, in terms of Rule of Court 42.20, within 42 days thereafter. She asserts that accordingly it is "now too late for any appeal such as is stated, and this ground of appeal should be refused." Identical responses are to be found in paragraphs 2 and 3 of the Answers. In relation to the criticisms contained in paragraph 4 of the grounds of appeal, the respondent refers to the "Opinion dated 11 October 2007". She avers that, in issuing that Opinion,
"the Tribunal gave its decision on these matters in terms of section 11 of the Tribunal and Inquiries Act 1992 and Rule 27 of the Lands Tribunal for Scotland Rules 2003, in writing and with a statement of reasons. Its decision was intimated to parties on or about that date. It was appealable in terms of Rule of Court 41.20, within 42 days thereafter. It is accordingly now too late for any appeal such as is stated,...
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