Sheltered Housing Management Ltd v Jack
| Jurisdiction | Scotland |
| Judgment Date | 11 November 2008 |
| Neutral Citation | [2008] CSIH 58 |
| Date | 11 November 2008 |
| Docket Number | No 10 |
| Court | Court of Session (Inner House) |
Court of Session Inner House Extra Division
Lord Osborne, Lord Nimmo Smith, Lord Reed
Process - Statutory appeal - Lands Tribunal for Scotland - Appeal in connection with "Opinions" dated 5 January and 11 October 2007 and "Order" dated 9 June 2008 issued by Lands Tribunal for Scotland - Whether timeous - Whether "Opinions" and "Order" a "decision" - Tribunals and Inquiries Act 1992 (cap 53), secs 10(1), (6), 11(10) - Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69)), rr 41.1(2), 41.20(1)(b)
Words and phrases - "Decision" - Tribunals and Inquiries Act 1992 (cap 53), sec 11(10)
Section 10 of the Tribunals and Inquiries Act 1992 provides, inter alia, "(1) Subject to the provisions of this section and of section 14, where- (a) any tribunal specified in Schedule 1 gives any decision … it shall be the duty of the tribunal … to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving or notification of the decision, to state the reasons. (6) Any statement of the reasons for a decision referred to in paragraph (a) … of subsection (1), whether given in pursuance of that subsection or of any other statutory provision, shall be taken to form part of the decision and accordingly to be incorporated in the record." Section 11 makes provisions for appeals from tribunals including the Lands Tribunal for Scotland where any party is dissatisfied in point of law with a decision of the tribunal. Section 11(10) provides, "In this section 'decision' includes any direction or order, and references to the giving of a decision shall be construed accordingly." Schedule 1 specifies a number of tribunals including the Lands Tribunal for Scotland.
Rule of Court 41.1 provides, inter alia, "(1) This Chapter applies to an appeal to the court from a decision of a tribunal other than a decision in the Outer House or a court to which Chapter 40 (appeals from inferior courts) applies. (2) In this Chapter, unless the context otherwise requires- … 'decision' includes assessment, determination, order or scheme". Rule of Court 41.20(1) provides, "Subject to paragraphs (2) and (3), the appeal shall be lodged in the General Department- (a) within the period prescribed by the enactment under which it is brought; or (b) where no such period is prescribed, within 42 days after- (i) the date on which the decision appealed against was intimated to the appellant; or (ii) where the tribunal issued a statement of reasons for its decision later than the decision, the date of intimation of that statement of reasons to the appellant."
The appellants applied to the Lands Tribunal for Scotland to preserve unvaried the title conditions in a deed of conditions in relation to a sheltered housing development. The respondent was the proposer of a new deed, which replaced the deed of conditions. On 5 January 2007 the Lands Tribunal issued an "Opinion" which, inter alia, refused the application. On 11 October 2007 the Lands Tribunal issued a further "Opinion" which, inter alia, decided that it was just to award compensation of £9,178 to the appellants. On 9 June 2008 the Lands Tribunal issued an "Order" which, inter alia, refused the application, directed the respondent to pay £9,178 by way of compensation and made findings of liability in expenses. On 18 July 2008 the appellants appealed to the Court of Session. Their grounds of appeal challenged the opinions of the Lands Tribunal dated 5 January and 11 October 2007. The respondent lodged answers which stated that the decisions dated 5 January and 11 October 2007 were appealable within 42 days thereafter, and that it was now too late to appeal. The appellants enrolled a motion to appoint the cause to the summar roll for a hearing. The respondent opposed the motion on the basis that the appeal was out of time.
Held that: (1) the order of 9 June 2008 must be taken to embrace the statements of reasons in the opinions of 5 January and 11 October 2007, and it followed that criticism of the reasons given in those opinions must be seen as criticism of reasons which themselves are to be taken to form part of the order of 9 June 2008 (para 24); (2) the order of 9 June 2008 was a "decision" of the Lands Tribunal within the meaning of sec 11(10) of the Tribunals and Inquiries Act 1992 and was timeously made the subject of appeal (paras 25, 26); and appellants' motion granted and cause appointed to the summar roll for a hearing.
Observed that: (1) appropriate changes in the terminology used by the Lands Tribunal for Scotland to describe its decisions, which should leave no doubt as to their categorisation in terms of sec 11 of the 1992 Act and RC 41.20(1)(b), were desirable (para 27); (2) the shortcomings of the Lands Tribunal for Scotland Rules 2003 (SSI 2003/452) should be addressed (para 28).
Sheltered Housing Management ltd applied to the Lands Tribunal for Scotland to preserve unvaried the title conditions in a deed of conditions in relation to a sheltered housing development. Margaret Jack opposed the application.
After a hearing on evidence on 21 to 23 September and 2 October 2006 the Lands Tribunal (JN Wright QC, IM Darling FRICS) issued an "Opinion" dated 5 January 2007 which, inter alia, refused the application. On 17 January 2007 the Lands Tribunal allowed the appellants to lodge an application for compensation. A hearing on the claim for compensation took place on 14 August 2007. On 11 October 2007 the Lands Tribunal issued a further "Opinion" which, inter alia, decided that it was just to award compensation of £9,178 to the appellants. On 9 June 2008 the Lands Tribunal issued an "Order" which, inter alia, refused the application, directed the respondent to pay £9,178 by way of compensation and made findings of liability in expenses.
On 18 July 2008 the appellants appealed to the Court of Session under sec 11(7)(b) of the Tribunals and Inquiries Act 1992. The respondent lodged answers. The appellants enrolled a motion to appoint the cause to the summar roll for a hearing. The respondent opposed the motion on the basis that the appeal was out of time.
Cases referred to:
Ceredigion County Council v Jones, sub nom R (on the application of Jones) v Ceredigion County CouncilUNKWLRUNKUNKWLRUNK [2007] UKHL 24; [2007] 1 WLR 1400; [2007] 3 All ER 781 and [2005] EWCA Civ 986; [2005] 1 WLR 3626; [2006] 1 All ER 138; [2005] CP Rep 48
Commonwealth of Australia v Bank of New South WalesELRUNK[1950] AC 235; [1949] 2 All ER 755; (1949) TLR 633
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
Keddie v Woodside Building Services Ltd 1998 GWD 33-1714
Khan v Chand (1902) LR 30 Ind App 35
MRS Hamilton Ltd v Keeper of the Registers of Scotland, sub nom Keeper of the Registers of Scotland v MRS Hamilton LtdSC 2000 SC 271; 2000 SLT 352
Queens Cross Housing Association Ltd v McAllisterSC 2003 SC 514; 2003 SLT 971; [2004] RVR 177; 2003 Hous LR 45
R v Lands Tribunal, ex p City of London CorporationWLRUNKUNK[1982] 1 WLR 258; [1982] 1 All ER 892; (1982) 80 LGR 564
Rohatgi v Health Care Complaints Commission (CA 40165/96) Court of Appeal, Supreme Court of New South Wales, 26 July 1996, unreported
The cause called before an Extra Division, comprising Lord Osborne, Lord Nimmo Smith and Lord Reed, for a hearing on the single bills, on 24 and 25 September 2008.
At advising, on 11 November 2008, the opinion of the Court was delivered by Lord Osborne-
Opinion of the Court-
[1] This appeal under sec 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 secs 34(3) and 90(1)(c) of the Title Conditions (Scotland) Act 2003 (asp 9) ('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 sec 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...
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