Summary Application By Coastal Regeneration Alliance Limited Against Scottish Ministers And Scottish Power Generation Limited
| Jurisdiction | Scotland |
| Judge | Sheriff N.A. Ross |
| Neutral Citation | [2016] SC EDIN 60 |
| Court | Sheriff Court |
| Date | 08 September 2016 |
| Docket Number | B277/16 |
| Published date | 08 September 2016 |
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 60
B277/16
JUDGMENT OF SHERIFF N A ROSS
In the Summary Application by
COASTAL REGENERATION ALLIANCE LIMITED
Pursuer
Against
SCOTTISH MINISTERS
Defender
and
SCOTTISH POWER GENERATION LIMITED
Interested Party
Pursuer: Campbell QC
Defender: Burnet, advocate
Interested Party: Sutherland, advocate
Edinburgh August 2016: The Sheriff, having resumed consideration of the cause, repels the pursuer’s pleas-in-law, sustains the pleas-in-law for the defender and interested party, and refuses the appeal; fixes a further hearing, on a date to be afterwards fixed, for submissions on expenses, unless parties can agree final disposal without need for appearance.
Note:-
[1] This is a statutory appeal by summary application procedure in terms of section 61 of the Land Reform (Scotland) Act 2003 (the “2003 Act)”). The pursuer appeals against two similar decisions of the defender that two community interests are not to be entered in the Register. The relevant decision letters are dated 19 February 2016. These letters pre-date certain recent amendments to the 2003 Act, and accordingly all references are to the pre‑amendment provisions which applied at the date of the decision letters.
[2] The procedure to be adopted in such an appeal, and the powers of the court, are not defined in the 2003 Act, and led to some discussion as to the appropriate form of hearing (a matter of central significance, as the 2003 Act excludes any further appeal). Procedure was by way of legal debate, with the proviso that, depending on the outcome, some evidence may be required. As evidence was not led, the pursuer’s averments of fact will be treated as correct for purposes of discussion.
The statutory framework
[3] This action is brought under the “community right to buy” provisions which are set out in Part 2 of the 2003 Act. These provisions create a right for local communities to seek to register an interest in land. The 2003 Act requires such an application be made by a company limited by guarantee set up for the purpose (section 34), such as the pursuer, and known as a ‘community body’. The community body applies to the defender for registration in a register kept by the Keeper entitled “Register of Community Interests”. That registration has effect in the event that the landowner takes steps to dispose of the land. Upon that event, the community body has certain rights to attempt to buy the land. The pursuer is such a community body, and the community relates to Prestonpans, Cockenzie and nearby areas in East Lothian.
[4] The requirements for registration of a community interest are set out in sections 37 to 46 of the 2003 Act. Broadly, there are two categories of application, namely those made prior to, and those made after, the date upon which an owner of land has taken steps to transfer the land to another. I shall adopt parties’ references to these as ‘timeous’ and ‘late’ applications respectively, as these are described in statutory guidance referred to below.
[5] For a timeous application, the requirements are set out in section 37. This provides that a community interest in land may be registered only upon an application made by a community body to the defender in the prescribed form. There are detailed provisions for the procedure to be adopted. The criteria for registration, after timeous application, are set out in section 38. The section 38 criteria include requirements that the land is registrable land, that a significant number of the members of the community have a substantial connection with the land, that the land is sufficiently near land with which they have a substantial connection, and other criteria, all as set out in that section.
[6] There is a separate procedure for late applications (section 39). Lateness is established where the application by the community body for registration is received ‘after the date on which the owner of land…has taken action which, if a community interest had been registered, would be prohibited…’ and before missives for sale and purchase have been concluded, or an option to purchase conferred.
[7] Section 39(3) sets out the requirements for a late application. The defender must not decide to register the land unless not only all the section 38 criteria are satisfied, but also three further criteria, namely:
(a) ‘that there were good reasons why the community body did not secure the receipt of an application before the owner of the land…took the action, or gave notice [which would be prohibited if the land were registered]’
(b) ‘that the level of support within the community for such registration is significantly greater than that which Ministers would…have considered sufficient for the purposes of [a timeous application]’
(c) ‘that the factors bearing on whether it is or is not in the public interest that the community interest be registered are strongly indicative that it is.’
[8] In the present case, it is not disputed by the parties that the criteria of section 38 have been met, and also criterion in section 39(3)(b) (‘significantly greater level of support’). The present dispute relates to section 39(a) (‘good reasons’) and 39(c) (‘strongly indicative of public interest’). The defender decided these conditions had not been met, and refused registration.
The background to the late applications
[9] Parties are substantially agreed on the factual background, and for the purposes of debate this can be briefly summarised as follows:-
[10] The pursuer is a community body set up under section 34. On about 21 August 2015 it made two applications for registration of two separate areas of land (the ‘first applications’). These areas of land are both situated near the site of the former Cockenzie power station Prestonpans, East Lothian. They are, respectively, an area of land known as the ‘Greenhills site’ and an area of land nearby known as the ‘Battlefield site’. They were timeous applications. In terms of section 37(17) of the 2003 Act, they fell to be determined by the defender within 63 days. In fact the defender took 81 days. On 10 November 2015 the defender then intimated that it declined to consider the applications as the pursuer had incorrectly identified the owner of the site as Scottish Power plc. In fact, ownership had passed to the Interested Party (hereafter ‘SPG’) on 27 September 2001 and the transfer had not yet been reflected on the Land Register. No challenge is made to those determinations of the first applications.
[11] On 12 November 2015 the pursuer submitted two further applications (the ‘second applications’) in relation to the same sites. The second applications were accompanied with the prescribed information sufficient for a timeous application. However, by that stage (and as early as June 2014), SPG had entered into talks with a number of third parties with a view to sale of both sites. The second applications were therefore late as the terms of section 39(1)(a) were satisfied, because SPG had already taken action with a view to transfer of the land (section 40(1)). It is not disputed that, due to the timing of the second applications, they are late applications. The terms of section 39 do not require, or mention, knowledge on the part of the applicant.
The defender’s decision on the second applications
[12] By separate letters each dated 19 February 2016 (lodged respectively as numbers 23 and 24 in the pursuer’s inventory) the defender intimated their decision in relation to the Greenhills site and the Battlefield site respectively (together, the ‘decision letters’). The defender determined that it would not enter either of the two applications in the Register. The decision letters are in similar terms, and each accepted that a number of the tests for registration had been satisfied. However, the defender was not satisfied in relation to either site that the terms of sections 39(a) (‘good reasons’) and 39(c) (‘strongly indicative of public interest’) were met. The pursuer challenges both decision letters.
The grounds of appeal
[13] The 2003 Act provides for challenge under section 61, which is notably brief in its terms. I will discuss this later. The grounds of appeal in the Initial Writ are that:-
(d) the defender arrived at its decisions in respect of the matters complained of on an incorrect factual basis, having taken into account immaterial and factually incorrect facts and considerations;
(e) the defender has acted unreasonably, in respect that the decisions are predicated upon facts and circumstances which were inaccurate, and separately were unknown and could not have been known to the pursuer at the date of the applications; and,
(f) the defender has failed to give proper adequate and intelligible reasons for its decisions, and has accordingly acted ultra vires.
The pursuer’s submission
[14] Mr Campbell addressed the two grounds of refusal. The first was the alleged failure to demonstrate good reasons why the community body did not secure the receipt of an application before SPG took the action to sell the sites. At the outset, he noted that it had taken 101 days (instead of the statutory 30 days) for the defender to intimate its decision, although this could not itself be a ground of appeal as it can be excused under the 2003 Act. He noted also that all the criteria under section 38 had been accepted by the defender as being met. He submitted that the nature of the error was such that the court should exercise a fresh discretion, not simply examine the matter on the traditional approach of an appeal court.
[15] He noted the terms of the decision letters. These noted that it was ‘clear’ that SPG had taken steps to dispose of the sites prior to the application being made, and equally clear that the pursuer had not taken any steps to submit a timeous application before these steps were taken. The defender identified, from the material submitted by the...
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