Human rights — Listed building consent application — Objection by Historic Scotland — Call-in decision by Scottish ministers — Non-determination of planning application — Reporter appointed by Scottish ministers — Whether call-in decision and appointment of reporter ultra vires having regard to Article 6(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms — Whether decisions of Scottish ministers and reporter ultra vires
In 1999 the petitioner applied for planning permission and listed
building consent for the demolition and redevelopment of a category A listed
building. Planning permission and listed building consent for the demolition of
the building had previously been granted for a different scheme, and had been
renewed in 1997. Following an objection from Historic Scotland, an executive
agency of the respondent Scottish ministers, the Scottish ministers called in
the listed building consent application, and later formally appointed a
reporter to hold a public local inquiry and report on the application. A
further planning application was lodged with the local planning authority. Upon
the non-determination of that application, the petitioner appealed to the
Scottish ministers. They decided that: (a) a public local inquiry would be held
in respect of that appeal; (b) it would be conjoined with the listed building
consent application; and (c) they would determine the case. Prior to his formal
appointment, the reporter held a procedural meeting in which he decided that he
could not consider the application for planning permission without taking into
account the effect of the demolition of the existing structure. The petitioner
challenged the validity of the Scottish ministers’ decisions to call in the
application and to appoint the reporter to conduct the public inquiry,
contending that they were ultra vires, by virtue of section 57(2) of the
Scotland Act 1998, in that they constituted acts incompatible with the
petitioner’s rights under Article 6(1) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (the Convention), which is
incorporated into the Human Rights Act 1998. The petitioner contended that the
reporter was not an independent and impartial tribunal. It also challenged the
decisions upon the grounds of irrationality, inadequacy of reasons and lack of
impartiality.
reduced.
In the circumstances of this case, determination by the respondents
of the petitioner’s application for listed building consent, after an inquiry
conducted by the reporter, would not satisfy the requirements of Article 6(1).
The respondents’ decision to call in that application was incompatible with the
petitioner’s Convention rights, and therefore ultra vires by virtue
of section 57(2) of the Scotland Act 1998. The petitioner was
entitled to reduction of that decision. It was a necessary consequence of the
reduction of that decision that the appointment of the reporter also fell to be
reduced: see p100G.
The decision to call in the application for listed building consent
was not irrational. There was no statutory duty upon the Scottish ministers to
give reasons for the discretionary administrative decision to call in the
application. As the reporter was not formally appointed until after she had
made the decisions at the procedural meeting, there were no ‘decisions’ capable
of challenge. There was no waiver by the petitioner of its right to bring the
substantive challenges.
Albert and Le Compte v Belgium A/58 (1983) 5 EHRR
533
Armia Ltd v Daejan Developments Ltd 1979 SC (HL)
56; 1979 SLT 147
Bryan v United Kingdom A/335-A [1996] 1 PLR 47;
[1996] 2 EGLR 123; [1996] 28 EG 137; (1996) 21 EHRR 342
Clancy v Caird 2000 SLT 546
Fayed v United Kingdom A/294-B (1994) 18 EHRR 393
Findlay v United Kingdom Case C-97/2807 25 February 1997 Reports 1997-I; (1997) 24
EHRR 221
Obermeier v Austria A/179 (1991) 13 EHRR 290
Starrs v Ruxton 2000 JC 208
Wordie Property Co Ltd v Secretary of State for
Scotland 1984 SLT 345
Zumtobel v Austria A/268-A (1994) 17 EHRR 116
Application for judicial review
This was an application by County Properties Ltd, by way of
judicial review, challenging the validity of decisions of the respondent
Scottish ministers.
appeared for the petitioner, County Properties Ltd.
solicitor to the Scottish Executive) represented the respondents’, the Scottish
Ministers.
LORD MACFADYEN:
Introduction
The petitioner is the owner of heritable subjects at 105-107 West
Regent Street, and 112 Wellington Street, Glasgow (the subjects). In this
petition, it seeks to bring under judicial review: (1) a decision by the
Scottish ministers to call in an application for listed building consent that
it made to City of Glasgow Council (CGC) in respect of the subjects; (2) a
decision by the Scottish ministers appointing a reporter to hear a public
inquiry in relation to that application; and (3) certain decisions said to have
been made by the reporter at a procedure meeting held in relation to the public
inquiry. Answers to the petition have been lodged on behalf of the
Scottish ministers (the respondents), and, at the first hearing of the
petition, I heard submissions from counsel on behalf of the petitioner and on
behalf of the respondents.
Planning and procedural history
The subjects are a category A listed building located in the
Glasgow Central conservation area. They were originally built as a town house,
and were extended to form the offices of the well-known architect, Alexander
Thomson (known as ‘Greek Thomson’). How far he was responsible for the design
of the extension is not clear from the material placed before me. By the 1990s,
the subjects had deteriorated. Planning permission and listed building consent
for their demolition, and the erection of a replacement building, were
originally granted in 1992. Further applications for renewal of that planning
permission and listed building consent were made in 1997, and were granted by
CGC on 7 July 1997. The permission and consent were each subject, inter alia,
to a condition (Z1.01) that: ‘The development shall be implemented in
accordance with [certain identified drawings]’. Three of the drawings mentioned
in the condition are produced, and show that the style of the replacement
building for the erection of which permission and consent were given was
similar to that of the existing subjects.
In 1999 the petitioner applied for planning permission and listed
building consent for the demolition of the subjects and the erection of a new
five-storey office building. Drawings, illustrating the replacement building
contemplated in those applications, show that that building was to be in modern
style, very different from the existing subjects. The petitioner avers that the
respondents did not exercise their power in terms of section 46 of the Town and
Country Planning (Scotland) Act 1997 to call in the application for planning
permission. Planning permission was granted by CGC on 13 July 1999. The
respondents aver that CGC did not consult with them (as required by Article
15(1)(j)(vi) of the Town and Country Planning (General Development Procedure)
(Scotland) Order 1992) before granting that application, and that, consequently,
there having been no advice from them against granting it, they were not
notified of CGC’s intention to grant planning permission in terms of para 13 of
the schedule to the Town and Country Planning (Notification of
Applications)(Scotland) Direction 1997.
The petitioner avers that by letter dated 6 September 1999 from
Historic Scotland, CGC were informed that the respondents had considered the
application for listed building consent and decided that the proposals were a
matter of importance, which they ought to decide. The background to that letter
is filled in by the averment in the respondents’ answers that on 19 July 1999
(ie six days after they had granted the related planning permission) CGC
notified Historic Scotland of the petitioner’s application for listed building
consent. The time for response allowed by section 12(2) of the Planning (Listed
Buildings and Conservation Areas)(Scotland) Act 1997 (Planning (LBCA) Act)
would have expired on 15 August 1999, but
was extended in accordance with section 12(2)(b). The letter of 6
September 1999 narrated that it was being written in accordance with a
direction by the respondents, and stated:
The Scottish
Ministers consider that these proposals are a matter of importance which they
ought to decide themselves. They accordingly hereby direct under the powers
conferred on them by section 11(1) of the [Planning (LBCA) Act] that the
application shall be referred to them instead of being dealt with by the
planning authority.
The respondents’ decision was communicated to the petitioner by CGC
on 13 September 1999.
By letter dated 25 January 2000, the respondents notified the
petitioner that they had appointed Mr GMM Thomson (the reporter) to hold a
public inquiry and to report with respect to the application for listed
building consent. A pre-inquiry procedure meeting of interested parties was
held by the reporter on 14 March 2000. It was attended by representatives of
the petitioner, CGC and Historic Scotland.
In the meantime, on 19 November 1999, the petitioner had lodged an
application for planning permission relating to the subjects. That application
sought to amend condition Z1.01 of the 1997 planning permission so as to
substitute, for the reference to the drawings originally mentioned in that
condition, a reference to the drawings approved in connection with the 1999
planning permission. The effect of that application, if granted, would be to
convert the permission to demolish and rebuild in the original style into a
permission to demolish and replace with a five-storey modern office block. CGC
did not determine the application within the statutory time limit, and the
petitioner therefore appealed to the respondents under section 47(2) of the
Town and Country Planning (Scotland) Act 1997 in respect of the deemed refusal.
The respondents subsequently: (a) decided that (i) a public local inquiry would
be held in respect of that appeal; (ii) it would be conjoined with the listed
building application; and (iii) they would determine the case; and (b)
appointed the reporter to conduct the public local inquiry and submit a report
to them. That decision was not, however, formally taken until 2 May 2000, long
after the procedure meeting held by the reporter in respect of the application
for listed building consent and mentioned at A above.
The reporter’s minute of the procedure meeting is dated 29 March
2000. It recorded, in para 2.1, that there was a single application before the
respondents: the application for listed building consent. It further recorded,
in para 2.2, that the appeal against the deemed refusal of the application to
amend the 1997 planning permission had been submitted. There was some
discussion of whether that appeal had yet been ‘validated’. Whether it had or
not, it is clear that at that date the reporter had not yet been appointed to
conduct any proceedings in respect of the application to amend the 1997
planning permission. Nevertheless, in the course of the meeting, the solicitor
for Historic Scotland expressed the view, in relation to that application, that
it was not lawful to substitute
drawings for one replacement scheme for another as it ‘constituted
a material change outwith the degree of variation permitted by section 64 of
the [Town and Country Planning (Scotland)] Act’. The reporter then records that
he referred to para 2.11 of the Memorandum of Guidance on Listed Buildings and
Conservation Areas, and continues, in para 3.7 of the minute, in the following
terms:
Accordingly, he agreed with [the solicitor for Historic Scotland]
that the replacement scheme was a material change from that for which there is
an extant consent. He considered the application merely to replace plans within
an existing consent to be incompetent and that it was not open to him to
consider the application without taking into account the effect of the
demolition of the existing listed structure. As this was also an integral part
of the application before Scottish Ministers for listed building consent, this
was central to the public inquiry to follow.
It is the ‘decisions’ expressed in that part of the minute that
constitute the third subject of the petitioner’s application for judicial
review.
Article 6(1)
The first ground upon which the petitioner attacks the validity of
both the respondents’ decision to call in the application for listed building
consent, and their decision to appoint the reporter to conduct the public
inquiry, is that those decisions were ultra vires by virtue of section
57(2) of the Scotland Act 1998, in respect that they constituted acts incompatible
with the petitioner’s rights under Article 6(1) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms (the Convention).
Section 57(2) provides, inter alia, as follows:
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…
‘The Scottish ministers’ is the collective term for the members of
the Scottish executive (section 44(2)), and section 57(2) therefore regulates
the powers of the respondents. ‘The Convention rights’ include the rights set
out in Article 6 of the Convention (section 126(1) of the Scotland Act 1998 and
section 1(1)(a) of the Human Rights Act 1998).
Article 6(1) of the Convention provides, inter alia, as
follows:
In the determination of his civil rights and obligations… everyone
is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.
The petitioner avers that the respondents are not, and the reporter
is not, an independent and impartial tribunal. Its averment as to the position
of the respondents is in the following terms:
The decision by
the Respondents to determine the application was made as a result of the
objection by Historic Scotland an executive agency of the Respondents.
Accordingly the Respondents cannot be impartial and separatim cannot be
seen to be impartial.
The averments as to the position of the reporter are in the
following terms:
That the Respondents’ Reporter is a part time Reporter employed by
the Respondents on an ad hoc basis to conduct inquiries on behalf of the
Respondents and prepare a report for the Respondents. That the Respondents’
Reporter is remunerated for said work by the Respondents…
and
As hereinbefore condescended upon [the reporter] is an ad hoc
Reporter appointed at the discretion of the Respondents. He receives
remuneration directly and only when appointed by the Respondents. Separatim
he cannot be impartial in circumstances where Historic Scotland, an executive
agency of the Respondents is the body responsible for opposing the application
and separatim cannot be seen to be impartial.
The respondents answer the averments dealing with their own
position in the following way:
Admitted that Historic Scotland is an executive agency of the
Respondents… Admitted that the Scottish Ministers are not an independent and
impartial tribunal in terms of Article 6.1 of [the Convention] in the
circumstances of this case
(Judge’s emphasis.)
They answer the averments dealing with the position of the reporter
as follows:
Admitted that the Respondents’ Reporter is remunerated by the
Respondents for his work as a reporter… The said Reporter, Mr Thomson was one
of the full-time reporters employed by the Respondents until his retiral on 31
March 2000. He was remunerated as a full-time reporter. He has held appointment
as a part-time reporter since 1 April 2000… The Reporter was not empowered, nor
required, to determine [the application for listed building consent]…
and
Admitted that the Reporter is not an independent and impartial
tribunal under explanation and averment that his role is to hold a public
inquiry into the application for listed building consent and the application
for planning permission… and to report on those applications to the
Respondents…
(Judge’s emphasis.)
The respondents go on, however, after making those admissions, to
aver, inter alia, that the petitioner’s right of appeal to this court
from their decision satisfies the requirements of Article 6(1).
Notwithstanding the respondents’ admission that neither they nor
their reporter constituted an ‘independent and impartial tribunal’, within
the meaning of Article 6(1), in the circumstances of the present
case, Mr Gordon Steele, senior counsel for the petitioner, sought, in the
course of his submissions, to highlight the circumstances of the present case,
which resulted in that situation. He pointed to the following facts:
1. Historic Scotland is an executive agency of the respondents.
2. Historic
Scotland had opposed the grant of listed building consent that CGC, the body
with the primary statutory obligation to deal with the application, had decided
to grant.
3. The respondents had chosen to exercise their discretion under
section 11(1) to call the application in for decision by themselves.
4. The intimation of the respondents’ decision to call the
application in was made on their behalf by Historic Scotland.
5. The reporter:
(a) was appointed by the respondents;
(b) served on a part-time basis;
(c) was paid by the respondents; and
(d) was subject to assessment of his performance by the
respondents.
6. There were no safeguards in respect of the employment of the
reporter analogous to those imposed by the Lord President in relation to
temporary judges: see Clancy v Caird 2000 SLT 546 at p550F-G.
7. There were no such safeguards as were mentioned in Findlay v
United Kingdom Case C-97/2807 (1997) 24 EHRR 221 at p246, para 78.
8. Historic Scotland was represented at the pre-inquiry meeting by
a solicitor, and would be represented at the public inquiry, in opposition to
the application.
9. The respondents’ solicitor advised both the respondents and
Historic Scotland.
10. Witnesses for Historic Scotland would give evidence at the
public inquiry in opposition to the application.
11. The respondents would take the decision upon whether or not the
application should be granted.
In these
circumstances, the petitioner characterised the respondents’ decision to call
in the application for listed building consent as the exercise of the statutory
discretion, under section 11(1) of the Planning (LBCA) Act, to bring about the
result that an application opposed by the respondents’ executive agency,
Historic Scotland, was to be determined by the respondents themselves after an
inquiry conducted by their appointee, the reporter. For this purpose, the
reporter and the respondents were to be regarded as component parts of a single
tribunal, the former hearing the evidence and submissions, and the latter
making the decision. That meant that the petitioner’s civil rights in relation
to its property, the subjects, would be determined by a tribunal that was
conceded not to be independent and impartial. The decision to call in the
application was therefore incompatible with the petitioner’s rights under
Article 6(1). The focus was upon the decision to call the application in for
decision by the respondents. It was that decision that was incompatible with
the petitioner’s Convention rights, although it would only be once the
substantive decision upon the application had been taken that the
petitioner’s
civil rights would be determined, and its Convention rights contravened. The
petitioner’s right of appeal to this court from the substantive decision by the
respondents would not serve to secure compliance with Article 6(1), because of
the restricted scope of the appeal. Its scope did not permit a full review of
matters of fact or (of particular relevance in the present case) planning
judgment.
In support of that submission, Mr Douglas Armstrong, junior counsel
for the petitioner, referred, first, to two Scottish cases on Article 6(1). The
first of these was Starrs v Ruxton 2000 JC 208, in which it was
held that temporary sheriffs were not an independent and impartial tribunal
within the meaning of Article 6(1). The second was Clancy v Caird 2000
SLT 546, in which the contention that a temporary judge of the Court of Session
was not an independent and impartial tribunal, within the meaning of Article
6(1), was rejected. Mr Armstrong pointed out that in neither of those cases was
it suggested that the availability of a right of appeal secured compliance with
Article 6(1).
Mr Armstrong then turned to a series of cases decided in the
European Court of Human Rights (ECHR). He referred first to Findlay v United
Kingdom Case C-97/2807 (1997) 24 EHHR 221, a case that concerned
proceedings before a court-martial. The circumstances were that a single
officer, the convening officer, was responsible for convening the
court-martial, for appointing all those who participated in it and for
confirmation of the sentence. The ECHR pointed out (at para 76 of the judgment)
that in order to maintain confidence in the independence and impartiality of
the court, appearances may be of importance. It concluded that the
court-martial was not an independent and impartial tribunal, relying upon the
circumstances that: (a) the members of the court-martial appointed by the
convening officer were all subordinate in rank to him; (b) the convening
officer had the power to dissolve the court-martial, either before or during
the trial; and (c) the decision of the court-martial was not effective until
ratified by the convening officer, who had power to vary its sentence. At para
79 it added:
Nor could the defects referred to above be corrected by any
subsequent review proceedings. Since the applicant’s hearing was concerned with
serious charges classified as ‘criminal’ under both domestic and Convention
law, he was entitled to a first instance tribunal which fully met the
requirements of Article 6(1).
In Albert and Le Compte v Belgium A/58 (1983)
5 EHHR 533, a case concerning medical disciplinary proceedings, the ECHR said
(in para 29 of the judgment):
Since the ‘contestation’ (dispute) over the decisions taken
against them concerned a ‘civil right’, the applicants were entitled to have
their cases (in French: ’causes’) heard by a ‘tribunal’ satisfying the
conditions laid down in Article 6(1). In many member States of the Council of
Europe, the duty of adjudicating on disciplinary offences is conferred on
jurisdictional organs of professional associations. Even in instances where
Article 6(1) is applicable, conferring powers in this manner does not in itself
infringe the Convention.
Nonetheless, in such circumstances the Convention calls at least
for one of the two following systems: either the jurisdictional organs
themselves comply with the requirements of Article 6(1), or they do not so
comply but are subject to subsequent control by a judicial body that has full
jurisdiction and does provide the guarantees of Article 6(1).
An example of that approach in operation is to be found in the
third case that Mr Armstrong cited, namely Obermeier v Austria
A/179 (1991) 13 EHRR 290. In that case, the applicant was suspended,
then dismissed, by his employer. Proceedings came before the disabled persons
board at first instance, then before the provincial governor on appeal. It was
common ground that neither of these could be regarded as an independent
tribunal within the meaning of Article 6(1). There was a further appeal to the
Administrative Court, and the ECHR held that it could be considered sufficient
under Article 6(1) only if the Administrative Court could be described as a
‘judicial body that has full jurisdiction’ within the meaning of Albert and
Le Compte v Belgium. In para 70 of the judgment, the ECHR said:
[T]he Administrative Court can only determine whether the
discretion enjoyed by the administrative authorities has been used in a manner
compatible with the object and purpose of the law. This means, in the final
result, that the decision taken by the administrative authorities, which
declares the dismissal of a disabled person to be socially justified, remains
in the majority of cases, including the present one, without any effective
review exercised by the courts.
In disputes concerning civil rights, such a limited review cannot
be considered to be an effective judicial review under Article 6(1). There has
therefore been a violation of Mr Obermeier’s right of access to a court.
Finally, Mr Armstrong turned to Bryan v United Kingdom
A/335-A (1996) 21 EHRR 3421. That case was concerned with
enforcement notice proceedings under the [English] Town and Country Planning
Act 1990. The planning authority served an enforcement notice requiring
demolition of two buildings that they contended had been erected without
planning permission. The applicant appealed to the Secretary of State upon four
of the grounds specified in section 174(2) of the Act, namely that: (a)
planning permission ought to be granted for the development; (b) the matters
alleged in the notice did not constitute a breach of planning control; (g) the
steps required by the notice were excessive; and (h) the period specified in
the notice was too short. The issue under ground (b) was whether the buildings
were designed for the purpose of agriculture, the planning authority contending
that they were houses, and the applicant that they were barns. An inspector was
appointed to conduct an inquiry and determine the appeal. He rejected the
appeal on grounds (a), (b) and (g), but upheld it on ground (h), to the extent
of allowing a longer period for compliance with the notice. His decision
against the applicant upon ground (b) proceeded upon a finding in fact that the
buildings, as
originally constructed, were houses, not barns. The applicant then
appealed to the High Court under section 289 of the Act, which provides for
appeal on a point of law. Although the appeal originally challenged the
inspector’s decision on ground (b), that aspect of it was abandoned, apparently
because it was accepted that it involved no point of law: see p347, para 13.
The ECHR held that the inspector was not an independent and impartial tribunal.
The limited ground upon which it did so is set out in para 38 of the judgment
as follows:
It is true that the inspector was required to decide the
applicant’s planning appeal in a quasi-judicial, independent and impartial, as
well as fair, manner. However… the Secretary of State can at any time, even
during the course of proceedings which are in progress, issue a direction to
revoke the power of an inspector to decide an appeal. In the context of
planning appeals the very existence of this power available to the Executive,
whose own policies may be in issue, is enough to deprive the inspector of the
requisite appearance of independence, notwithstanding the limited exercise of
the power in practice… and irrespective of whether its exercise was or could
have been at issue in the present case.
For this reason alone, the review by the inspector does not of
itself satisfy the requirements of Article 6 of the Convention, despite the
existence of various safeguards customarily associated with an ‘independent and
impartial tribunal’.
1[1996] 1 PLR 47
So far as the appeal to the High Court was concerned, the ECHR (at
para 40) identified the issue as whether it satisfied the requirements of
Article 6(1) as far as the scope of its jurisdiction was concerned. Beginning
at para 44, the ECHR noted:
that the appeal to the High Court, being on ‘points of law’, was
not capable of embracing all aspects of the inspector’s decision concerning the
enforcement notice served on Mr Bryan. In particular, as is not infrequently
the case in relation to administrative law appeals in the Council of Europe
Member States, there was no rehearing as such of the original complaints
submitted to the inspector; the High Court could not substitute its own
decision on the merits for that of the inspector; and its jurisdiction over the
facts was limited.
However, apart from the classic grounds of unlawfulness under
English law (going to such issues as fairness, procedural propriety,
independence and impartiality), the inspector’s decision could have been
quashed by the High Court if it had been made by reference to irrelevant
factors or without regard to relevant factors; or if the evidence relied on by
the inspector was not capable of supporting a finding of fact; or if the
decision was based on an inference from facts which was perverse or irrational
in the sense that no inspector properly directing himself would have drawn such
an inference.
45. Furthermore, in assessing the sufficiency of the review
available to Mr Bryan on appeal to the High Court, it is necessary to have
regard to matters such as the subject matter of the decision appealed against,
the manner in which that decision was arrived at, and the content of the
dispute, including the desired and actual grounds of appeal.
46. In this connection the Court would once more refer to the
uncontested safeguards attending the procedure before the inspector: the
quasi-judicial
character of the decision-making process; the duty incumbent on
each inspector to exercise independent judgment; the requirement that
inspectors must not be subject to any improper influence; the stated mission of
the Inspectorate to uphold the principles of openness, fairness and
impartiality. Further, any alleged shortcomings in relation to these safeguards
could have been subject to review by the High Court.
47. In the present case there was no dispute as to the primary
facts. Nor was any challenge made at the hearing in the High Court to the
factual inferences drawn by the inspector, following the abandonment of his
objection to the inspector’s reasoning under ground (b). The High Court had
jurisdiction to entertain the remaining grounds of the applicant’s appeal, and
his submissions were adequately dealt with point by point. These submissions…
went essentially to questions involving ‘a panoply of policy matters such as
development plans, and the fact that the property was situated in a Green Belt
and Conservation Area’.
Furthermore, even if the applicant had sought to pursue his appeal
under ground (b), the Court notes that, while the High Court could not have
substituted its own findings of fact for those of the inspector, it would have
had the power to satisfy itself that the inspector’s findings of fact or the
inferences based on them were neither perverse nor irrational.
Such an approach by an appeal tribunal on questions of fact can
reasonably be expected in specialised areas of the law such as the one at
issue, particularly where the facts have already been established in the course
of a quasi-judicial procedure governed by many of the safeguards required by
Article 6(1). It is also frequently a feature in the systems of judicial
control of administrative decisions found throughout the Council of Europe
Member States. Indeed, in the instant case, the subject matter of the contested
decision by the inspector was a typical example of the exercise of
discretionary judgement in the regulation of citizens’ conduct in the sphere of
town and country planning.
The scope of review of the High Court was therefore sufficient to
comply with Article 6(1).
As developed by Mr Steele, the primary submission for the
petitioner was that, in the circumstances of the present case, the tribunal of
first instance itself (ie the reporter and the respondents taken together)
required to comply with Article 6(1). That there are cases in which the
availability of appellate review will not correct deficiencies in the first
instance procedure was vouched by Findlay v United Kingdom: see
para 79. That should be held to be so in the present case, because not only was
the tribunal of first instance admitted not to be independent and impartial,
but also the manner and respects in which the tribunal failed to be independent
and impartial (see above at p6G) were so significant that they could not be
cured by the availability of an appeal procedure, even if the appellate
tribunal had ‘full jurisdiction’ in the sense indicated in Albert and Le
Compte v Belgium.
Mr Steele’s alternative submission was that if a failure of
independence and impartiality on the part of the tribunal of first instance was
to be cured by the availability of an appeal, the appellate tribunal required
to be a judicial body with full jurisdiction that did provide the guarantees of
Article 6(1): see Albert and Le Compte v Belgium, para 29; Obermeier
v
Austria, para 70; cf Zumtobel v Austria A/268-A
(1994) 17 EHRR 116, paras 31 and 32. In the particular circumstances of the
present case, the issue that the tribunal required to determine was essentially
one of judgment (variously described as ‘value judgment’, ‘planning judgment’
or ‘aesthetic judgment’) as between the two schemes for the replacement of the
listed building, the one involving replacement with a building of similar
appearance and the other involving replacement with a modern building. That is
an issue that could not effectively be reviewed by this court on appeal under
section 58 of the Planning (LBCA) Act. In the present case, therefore, it could
be said now that this court, entertaining an appeal under section 58, would not
be a judicial body ‘with full jurisdiction’ in the requisite sense to
constitute compliance with Article 6(1).
Mr Steele submitted that Bryan v United Kingdom was
distinguishable on its facts from the present case. In Bryan (at para
44: see also paras 25 and 26), the ECHR recognised that the jurisdiction of the
High Court over the facts was limited. The jurisdiction of this court is similarly
limited. It was scarcely surprising, however, having regard to the inspector’s
findings upon ground (b) (see p345), that that ground was not maintained before
the High Court. It was therefore not surprising that, in the circumstances of
that case, the ECHR took the view that the High Court was able to exercise
‘full jurisdiction’. Nor was it surprising that the court added the comment
that it did in the second part of para 47 (‘Furthermore…’). It did not follow,
however, that the statutory right of appeal was sufficient to secure compliance
with Article 6(1) in all circumstances and whatever the deficiencies of the
tribunal of first instance. Properly understood, Bryan v United
Kingdom supported the position of the petitioner in the present case.
In response to the petitioner’s submissions under Article 6(1), Mr
Jonathan Brodie, junior counsel for the respondents, advanced two arguments,
which were adopted and expanded by senior counsel, Mr Christopher Haddow. The
first was to the effect that the petitioner’s challenge to the validity of the
proceedings was premature. The respondents’ decision, under section 11(1), to
call in the application for listed building consent involved no determination
of the petitioner’s civil rights within the meaning of Article 6(1). The
decision that would effect such a determination would be the substantive
decision as to the disposal of the application for listed building consent. In Fayed
v United Kingdom (1994) 18 EHRR 393, the ECHR said (at para 56 of
the judgment) that for Article 6(1) to come into play, the proceedings in
question must be directly decisive of civil rights or obligations, mere tenuous
connections or remote consequences not being sufficient. In that case, a
distinction was drawn between investigative and dispositive proceedings: see
para 61. In the present case, the decision to call in the application for
listed building consent was not dispositive of the petitioner’s civil rights.
It was no more than a decision about how the dispositive decision should, in
due course, be made. It could not, therefore, constitute a contravention of
Article 6(1). Nor could it be said, at this stage, that the eventual
dispositive decision would involve a contravention of Article 6(1). That could
only be
determined in light of the whole circumstances surrounding the
eventual substantive decision. The respondents’ decision to call in the
application could only be said to be incompatible with a Convention right (and,
thus, ultra vires by reason of section 57(2) of the Scotland Act 1998)
if it was presently clear that the eventual substantive decision would
inevitably contravene a Convention right. That could not, at present, be
affirmed. The application for listed building consent might be granted. In that
event, any contravention of the petitioner’s rights under Article 6(1) would be
merely theoretical, and would give rise to no justiciable issue. Even if the
application were refused, it could not be said that there would inevitably be a
contravention of Article 6(1). Even if the petitioner was right that the
jurisdiction of the court was not, in every respect, full, it might turn out
that the issue upon which an appeal turned was one in respect of which the
court’s power of review was unrestricted. It would, therefore, be premature to
hold, at this stage, that the procedural decision to call in the application
for listed building consent was incompatible with a Convention right, and
therefore ultra vires.
The respondents’ second argument was that, by virtue of the right
of recourse to this court under section 58 of the Planning (LBCA) Act, there
would, despite the admission that the respondents and the reporter were not
independent and impartial, be no contravention of Article 6(1), and,
consequently, the decisions under challenge were not incompatible with
Convention rights. The United Kingdom regime of planning law allows for appeal
to the courts in specified circumstances. Although couched in terms of appeal
on a point of law or (as in section 58 of the Planning (LBCA) Act) in terms of
questioning the validity of a decision upon the ground, inter alia, that
it was not within the powers of the legislation, the right of appeal is not
confined to pure questions of law, but does permit to a considerable extent the
consideration of matters of fact. In Wordie Property Co Ltd v Secretary
of State for Scotland 1984 SLT 345, Lord President Emslie, in considering
legislation expressed in terms similar to those of section 58, said at
pp347-348:
A decision of the Secretary of State… will be ultra vires
if it is based upon a material error of law going to the root of the question
for determination. It will be ultra vires, too, if the Secretary of
State has taken into account irrelevant considerations or has failed to take
account of relevant and material considerations which ought to have been taken
into account. Similarly it will fall to be quashed on that ground if,
where it is one for which a factual basis is required, there is no proper basis
in fact to support it. It will also fall to be quashed if it… is so unreasonable that no reasonable
Secretary of State could have reached… it
(Judge’s emphasis.)
The aspects of the statutory appellate jurisdiction highlighted in
that quotation enable the court to review to a sufficient degree the approach
of the decision maker to matters of fact. So far as those aspects of the
planning process in respect of which there is no statutory right of appeal are
concerned, judicial review is available upon substantially the same grounds.
Reference was also made to the Scottish Planning Encyclopaedia,
paras A.5034 et seq. It was recognition of the width of the
appellate jurisdiction in those respects that led the ECHR in Bryan v United
Kingdom (where it was clear, from paras 24 to 26 and 44, that it had a full
and accurate understanding of the limits of the jurisdiction) to say what it
did in the second and third parts of para 47. The ECHR regarded an appeal
within that scope as being in line with the scope of judicial control of
administrative decisions found throughout member states, and as a sufficient
power to review matters of fact to secure compliance with Article 6(1).
Applying that approach in the present case, it could not be said, in face of
the availability of the statutory appeal under section 58 from the ultimate
substantive decision by the respondents, that there would be a contravention of
Article 6(1). The respondents’ admissions (see p6A above) involved a
recognition that, without a sufficient right of appeal, there would be a
contravention of Article 6(1), but it was not accepted that, with the right of
appeal available under section 58, there would be such contravention. On the
contrary, what was said by the ECHR in Bryan v United Kingdom was
applicable generally to the right of appeal to the courts in planning law.
The question for determination in this petition is whether it can
be said, at this stage of the planning process, that the decision of the
respondents to call in the application for listed building consent was
incompatible with a Convention right, namely the petitioner’s entitlement to
have its civil rights as proprietor of the subjects determined by an
independent and impartial tribunal. It was not disputed by the respondents that
their ultimate substantive decision on the application for listed building
consent would involve a determination of the petitioner’s civil rights within
the meaning of Article 6(1). The respondents were, in my opinion, correct in
their submission that the decision made by them, under section 11(1), to call
in the application for listed building consent was not itself a decision that
involved a determination of the petitioner’s civil rights, and therefore could
not constitute an infringement of Article 6(1). But the petitioner’s case is
not that that decision involved such a determination and such an infringement.
Rather, its contention is that a decision that, as Mr Steele put it, deprived
it of the opportunity of having its civil rights (the application for listed
building consent) determined by an independent and impartial tribunal (namely
CGC), and subjected it instead to the decision of a tribunal (comprising the
reporter and the respondents) that was, ex concessu, not independent and
impartial, was incompatible with (albeit not a present breach of) its
Convention rights, and was therefore beyond the respondents’ powers by virtue
of section 57(2) of the Scotland Act 1998. In my opinion, the petitioner was
right to formulate the issue in that way. It is, in my view, not an answer to
the petitioner’s challenge to the validity of the decision under section 11(1)
to say that it involves no present infringement of Article 6(1). A decision
that brings about the situation that a future decision will involve
infringement of Article 6(1) is itself, in my view, incompatible with a
Convention right. Just as in Starrs v Ruxton, the Lord Advocate
(through the Procurator Fiscal) acted in a way that was incompatible with the
accused’s Convention rights
by proceeding to trial before a temporary sheriff, because the
temporary sheriff’s verdict would not have been a determination by an
independent and impartial tribunal, so, in the present case, the respondents
have acted in a way that was incompatible with the petitioner’s Convention
rights if, by calling in the application for listed building consent, it has
brought about a situation in which that application will be determined by a
tribunal that is not (whether in itself or by virtue of an adequate right of appeal)
an independent and impartial tribunal.
The question, therefore, comes to be whether it can be affirmed at
this stage that the substantive decision on the petitioner’s application for
listed building consent will be determined by a tribunal that does not satisfy
the requirements of Article 6(1). It is necessary to consider first the
petitioner’s submission that it is entitled to have its application dealt with
by a tribunal that itself satisfies the requirements of Article 6(1) as to
independence and impartiality, and that even if this court has full
jurisdiction to review the respondents’ decision, that does not cure the lack
of independence and impartiality on the part of the respondents and the
reporter. It seems to me to be clear that there are some circumstances, in
which in order to satisfy the requirements of Article 6(1), it is necessary for
the tribunal itself to be independent and impartial; but that there are others
in which, although the tribunal itself is not independent and impartial, the existence
of a right of appeal to an independent and impartial judicial body, with full
jurisdiction to review the determination, will suffice to secure compliance
with Article 6(1). In Lester and Pannick on Human Rights Law and Practice at
para 4.6.23 (which Mr Brodie cited in the course of his submissions), the
distinction is drawn in the following terms:
Where a decision determinative of an individual’s ‘civil rights
and obligations’ is taken by the executive, or by an adjudicatory body not
complying with Article 6(1), the article requires (in accordance with the right
of access to a court) that the state provide a right to challenge the decision
before a judicial body with full jurisdiction providing the guarantees of
Article 6(1). If such an appeal is provided, there will be no violation of the
article. In contrast, where ‘courts of the classic kind’ (rather than
administrative tribunals) are concerned, art 6 must be fully complied with at
the trial stage.
The absence of any discussion of rights of appeal in Starrs v
Ruxton and Clancy v Caird is consistent with that
analysis. It is evident in Findlay v United Kingdom (at para 79)
that it was the characterisation of the charges faced by the applicant as
serious criminal charges that led to the conclusion that the defects in the
independence and impartiality could not be corrected by any review proceedings.
The court-martial was, because of the nature of its jurisdiction, akin to a
‘court of the classic kind’. This, however, is not a case involving a ‘court of
the classic kind’. The determination of the application for listed building
consent is to be made by the executive. Prima facie, therefore, the case
falls into the first, rather than the second, category identified in the
passage quoted above from Lester and Pannick. The basis upon which the
petitioner argues that, in the
present case, the lack of independence on the part of the
respondents and the reporter should be regarded as infringing its rights under
Article 6(1), irrespective of whether this court can exercise full jurisdiction
in an appeal under section 58, is that the admitted lack of independence and
impartiality is serious, indeed blatant. While I accept that the lack of
independence and impartiality on the part of the respondents is, in the present
case, clear, since what is involved is the respondents adjudicating upon an
issue between their own executive agency and the petitioner, I am not persuaded
that, on that account, I should hold that no form of review procedure could
save the respondents from infringement of Article 6(1). The respondents’
decision on the application for listed building consent will be an
administrative one. I consider that I should adhere to the view adopted in
cases such as Albert and Le Compte v Belgium, Obermeier v Austria
and Bryan v United Kingdom that, in the case of an
administrative decision maker, compliance with Article 6(1) may be secured by
the availability of review of the decision before a judicial body that has full
jurisdiction and does provide the guarantees of the article.
Appeal to this court under section 58 undoubtedly brings the
respondents’ decision under review before a judicial body that provides (so far
as its jurisdiction goes) the guarantees required by Article 6(1). The contrary
was not argued. What is in issue between the parties is whether, under section
58, this court exercises ‘full jurisdiction’ in the sense contemplated in the
authorities. The scope of review available under legislation couched in the
same terms as section 58 was summarised by Lord President Emslie in Wordie
Property Co Ltd v Secretary of State for Scotland in the passage
quoted in para 13D above. The respondents argue that such review is,
notwithstanding its limitations, sufficient to constitute ‘full jurisdiction’
sufficient to satisfy the requirements of Article 6(1). They rely heavily, for
support for that argument, upon what was said by the ECHR in Bryan v United
Kingdom at para 47. The petitioner, on the other hand, submits that the
circumstances of the present case are materially different from those of Bryan
v United Kingdom, particularly in relation to: (a) the circumstances
that render the respondents not an independent and impartial tribunal; and (b)
the nature of the issues that will fall to be determined in relation to the
petitioner’s application. There is, in my view, force in these aspects of the
petitioner’s submissions. It is apparent from Bryan v United Kingdom
(at para 45) that, in assessing the sufficiency of review, these are matters
that require to be taken into account. While, therefore, I am of opinion that
Mr Steele went too far in submitting that Bryan v United Kingdom
positively supports the petitioner’s submissions, it is, in my view, necessary,
when considering the observations made by the ECHR in para 47, to bear in mind
the particular circumstances of that case. It appears to me that the ECHR may
have underestimated the significance of the fact (which appears to have been
accepted — see para 13) that the reason for Mr Bryan’s abandonment of his
appeal to the High Court in respect of the ground (b) issue was the limited
scope for appeal on matters of fact. Be that as it may, however, the general
point made in para 47 was that, in specialised areas of law such as
planning, it may be sufficient for an appellate tribunal to be
confined, on matters of fact, to satisfying itself that the tribunal of first
instance reached a conclusion that was neither perverse nor irrational. That,
it was said, was particularly so when the facts had been established in
quasi-judicial proceedings that were governed by many of the safeguards
required by Article 6(1). While I have no doubt that the ECHR, in para 47,
intended to make a point of general application, there are, in my view, a
number of points of distinction between the category of case that the court had
in mind and the particular circumstances of the present case. The following
points can be made:
1. While the proceedings before the reporter in the present case
will no doubt be quasi-judicial, in the same way as the proceedings before the
inspector in Bryan v United Kingdom were noted to be (see para
46), the reporter in the present case will not, in those proceedings,
‘establish’ the facts in the same sense as did the inspector, who was himself
making a delegated decision; the decision in the present case will be made by
the respondents.
2. While in Bryan v United Kingdom the objection to
the independence and impartiality of the inspector was the appearance of lack
of independence, created by the Secretary of State’s power to revoke his
appointment (see para 38), in the present case the objection to the
independence and impartiality of the tribunal of first instance is not merely
the reporter’s lack of tenure, but, much more fundamentally, the fact that the
respondents will be deciding an issue between the petitioner and their own
executive agency, Historic Scotland — they will be judex in sua causa.
3. While Mr Steele, in my view, oversimplified the issue that the
respondents will have to determine — it will not, in my view, be simply a
matter of aesthetic preference for one or other of the replacement proposals —
it is true that matters of aesthetic and planning judgment will form a major
part of what has to be decided. The scope for this court, in an appeal under
section 58, to interfere with the respondents’ planning judgment is even more
restricted than the scope for review of matters of pure fact.
These circumstances combine, in my view, to constitute substantial
grounds for holding that the general observations made by the ECHR in para 47
of the judgment in Bryan v United Kingdom do not apply in the
present case.
It was argued by the respondents that it was only if it could be
affirmed, at this stage, that appeal under section 58 would inevitably be
inadequate for the purpose of Article 6(1) that it would be appropriate to
hold, in this process, that the decision to call in the application for listed
building consent was incompatible with Convention rights. I do not consider
that that is correct. The respondents have conceded that the effect of that
decision is that the petitioner’s application will be determined by a tribunal
that is not independent and impartial. The onus is therefore, in my view, upon
them to show that there exists a right of appeal to a court with full
jurisdiction, which will satisfy, in a secondary way, the
requirements of Article 6(1). It is not disputed that section 58
affords a right of appeal to a judicial body. The respondents have not,
however, satisfied me that, in the circumstances of this case, this court in
such an appeal would have full jurisdiction to review the substantive issues in
the case. It is no doubt right, as Mr Haddow argued, that it may turn out that
no appeal is required, or that the issue raised on appeal will be one that it
is within the court’s power to consider fully. But, having regard to the nature
of the case, it seems to me to be quite clear that the respondents’ decision
may go against the petitioner on the central issue of planning judgment as to
the replacement building. If that happens, the scope of appeal under section 58
is such that it cannot, in my view, be said that, in that event, there would be
a judicial body with full jurisdiction to review that decision in such a way as
to satisfy the requirements of Article 6(1). It is the petitioner’s Convention
right to have its civil rights determined by an independent and impartial
tribunal. In my view, the respondents’ decision to call in the application for
their own decision has brought about a situation in which the determination of
the petitioner’s civil rights will be made by the respondents, who are
admittedly not independent and impartial, and against whose decision there is
only a limited right of appeal to this court. The limitations upon the right of
appeal are such that it may well be impossible for this court, although
indisputably an independent and impartial tribunal, to bring those qualities to
bear upon the real issues in the case. The suggestion that the adequacy of the
right of appeal cannot be judged, until the grounds upon which the petitioners
seek to bring the respondents’ decision under review are identified, is, in my
view, not only unsound in principle but also thoroughly impractical. As Mr
Steele submitted, it would be unreasonable to require the petitioner to defer
its challenge to the validity of the call-in decision until after the inquiry
process had run its course, a decision had been made, and it was possible to
say for certain whether, in the circumstances, the statutory appeal afforded an
adequate review to comply with Article 6(1). Considerations of both time and
expense make that approach unattractive.
In the result, I am satisfied that, in the circumstances of this
case, determination of the petitioner’s application for listed building consent
by the respondents, after an inquiry conducted by the reporter, would not
satisfy the requirements of Article 6(1). It follows, in my opinion, that the
respondents’ decision to call in that application was incompatible with the
petitioner’s Convention rights, and, therefore, ultra vires of the
respondents by virtue of section 57(2) of the Scotland Act 1998. Subject,
therefore, to the plea of waiver discussed below, I am of opinion that the
petitioner is entitled to reduction of that decision. It is, in my view, a
necessary consequence of the reduction of that decision that the appointment of
the reporter also falls to be reduced.
Irrationality
The second ground upon which the petitioners challenge the validity
of the respondents’ decision to call in the application for listed building
consent is that that decision was unreasonable and perverse. In
considering an application for listed building consent, the
respondents are obliged by section 14(2) of the Planning (LBCA) Act to ‘have
special regard to the desirability of preserving the building or its setting or
any features of special architectural or historic interest which it possesses’.
In the present case, both planning permission and listed building consent for
the demolition of the subjects already exist in terms of the permission and
consent granted in July 1997. In addition, building warrant for the demolition
has been granted. Further, planning permission has now been granted for the
erection of the five-storey modern office block now proposed to replace the
subjects. The respondents did not call in that application. In these
circumstances, the principle of demolition of the existing subjects having been
accepted, and planning permission for the replacement building currently
proposed having been granted without intervention on the part of the
respondents, it was irrational to call in the application for listed building consent.
The respondents argued that it was erroneous to regard the 1997
permission and consent as settling the principle that the subjects should be
demolished. In those permissions, the demolition of the subjects and the
erection of a replacement building in similar style were inextricably linked,
as was made clear by conditions attached to the 1997 permission and consent,
which stipulated (in condition Z1.01) that the development should be
implemented in accordance with the identified drawings that show the ‘similar
style’ replacement building, and (in condition NC) that evidence of a firm
intention to carry out the redevelopment, in the form of a signed building
contract or the like, should be provided before commencement of the demolition
work. The requirement of replacement with a building in similar style was a
‘trade-off’ for demolition. It was therefore appropriate to revisit the
question of demolition when replacement with a five-storey modern office block
was proposed. The position of Historic Scotland, in response to informal
consultation, was set out in the following terms:
In our Inspectorates view, the issue here is whether a building
which is quite substantially the work of Alexander Thomson, partly for himself
as his own office, may be demolished. If it can be shown beyond reasonable
doubt that the building is so structurally flawed that it cannot be saved, we
would suggest that large sections of the existing composition might be
incorporated into the new structure, at the very least. In our view your
Council should revisit this scheme from the point of view of conserving the
existing building.
That view was reported in the CGC committee reports relating to the
application for planning permission and the application for listed building
consent. CGC failed, however, to undertake the proper consultation process in
relation to the application for planning permission: see p3B above. In these
circumstances, no adverse inference should be drawn against the respondents in
respect of the fact that they had not called in the application for planning
permission. Moreover, a number of representations against the new proposal had
been made by interested bodies (the Architectural Heritage Society of Scotland,
the Alexander
Thomson Society, the Glasgow Architecture Committee and the Royal
Fine Art Commission for Scotland), which required to be taken into account.
Regard also had to be had to the Memorandum of Guidance on Listed Buildings and
Conservation Areas 1998, paras 2.10 and 2.11, and to NPPG 18, paras 47 et
seq. In all these circumstances, it could not be said that it was
irrational for the respondents to call in the application for listed building
consent.
Mr Steele explained that when the petition was presented, the
petitioner had understood that the respondents had been properly consulted
about the 1999 application for planning permission, and had chosen not to call
it in. The position remained that they had no direct information on that, but
he accepted that if the circumstances as to consultation and notification were
as the respondents maintained, that weakened the case for regarding the call-in
decision as irrational.
In my opinion, it cannot be said that the respondents’ decision to
call in the application for listed building consent was irrational. It is, in
my view, correct that the 1997 permission and consent cannot be regarded as
settling irrevocably the principle that the demolition of the subjects is
acceptable, irrespective of the nature of the proposed replacement building.
What they authorise is the demolition of the subjects, provided they are
replaced in a particular way. When it is proposed to replace them with a wholly
different style of building, it is for consideration afresh whether, in that
changed context, demolition is acceptable. It is clear that the position
adopted by Historic Scotland in the informal consultation process was that the
question of demolition should be revisited. Other interested bodies have also
made representations about the new proposal. No inference of inconsistency can
be drawn against the respondents on account of their not calling in the
application for planning permission, when their position is that they were not
formally consulted about that application or notified of CGC’s intention to
grant it. In my view, it remained within the discretion conferred upon the
respondents by section 11(1) of the Planning (LBCA) Act, reasonably exercised,
to decide to call in the application for listed building consent.
Adequacy of reasons
The petitioner avers that the reason given by the respondents for
their decision to call in the application for listed building consent was
‘unreasonable and perverse and incapable of proper interpretation’. The reason
is contained in the passage from Historic Scotland’s letter of 6 September 1999
quoted on p3G above. In short, it was that the respondents ‘consider that these
proposals are a matter of importance which they ought to decide themselves’. Mr
Armstrong’s submission was that the petitioner should be informed of the
reasons why the respondents wished to decide the matter for themselves, so as
to enable it to consider whether or not to challenge the decision. The reason
given did not make that clear. He accepted, however, that the respondents were
under no statutory duty to give reasons.
For the respondents, reliance was placed, first, upon the fact that
there
was no statutory obligation to give reasons for a decision to call
in an application for listed building consent, and, second, upon the submission
that the reason given was, in the circumstances, perfectly adequate. There
would, it was submitted, be a risk, if more were said, that there would be an
appearance of having prejudged the merits of the application.
In my opinion, there is no substance in this aspect of the
petitioner’s submissions. There is no statutory duty laid upon the respondents
to give reasons for the discretionary administrative decision that they may
make under section 11(1). While there may be circumstances in which a duty to
give reasons arises at common law, in the absence of a statutory duty, Mr
Armstrong made no attempt to enter upon a discussion of the authorities bearing
on that point. I am therefore not persuaded that the respondents had a duty to
give reasons for their decision. In any event, it seems to me that the reason
given, that the respondents regarded the application as raising a matter of
importance, is perfectly adequate to explain the position to the petitioner and
CGC.
Reporter’s decisions
In the final branch of its case, the petitioner challenges the
validity of certain ‘decisions’ that it avers that the reporter made at the
procedure meeting held on 14 March 2000. The ‘decisions’ that it attacks are
set out in para 3.7 of the minute of the procedure meeting: see the passage
quoted on p4H above. Those ‘decisions’ relate to the application for planning
permission by which the petitioner sought to amend the 1997 planning permission
so as to refer to the drawings submitted in connection with the 1999
applications. A submission was made by the solicitor for Historic Scotland that
it was not lawful to substitute one replacement scheme for another, because
that constituted a greater degree of change than was permitted by section 64 of
the Town and Country Planning (Scotland) Act 1997. That submission was
misdirected, because the petitioner’s application did not purport to be made
under section 64. The reporter, however, recorded in the minute that he agreed
that the new replacement scheme was a material change. He went on to record
that he considered that the application merely to replace the plans was
incompetent, and that it was not open to him to consider the application
without taking into account the effect of demolition of the existing structure.
The petitioner’s complaint was, in substance, that, since the application was
not before the reporter at that stage, his ‘decisions’ were unreasonable, in
that they disclosed prejudgment of issues that only came before him for
consideration after the deemed refusal appeal was conjoined with the called-in
application for listed building consent and he was appointed to conduct the
conjoined inquiry. For the respondents, it was submitted that the reporter had
done no more than indicate that the question of demolition would, in any event,
have to be considered at the inquiry. Whatever he may have said about the
deemed refusal appeal, it could not constitute decisions in relation to that
appeal, because, until he was appointed to hear the conjoined inquiries, the
appeal was not before him. In light of that submission, Mr Steele ultimately
sought to rely upon the
reporter’s conduct, as expressed in para 3.7 of the minute, more as
an illustration of lack of impartiality than as a separate decision to be
reviewed.
In my view, it is clear that what the reporter said at the
procedure meeting could not constitute a decision in relation to the deemed
refusal appeal. He was not appointed to hear the inquiry into that appeal until
2 May 2000. Until then, he had no power to deal with it. It seems reasonable to
infer that, although he had not been formally appointed, he understood, by 14
March 2000, that he was going to be conducting the inquiry into the deemed
refusal appeal. Faced with a submission about it, he expressed a view upon the
point made. I do not consider that it is right to hold that, in so doing, the
reporter demonstrated partiality, but it would have been more appropriate for
him to refrain from expressing any view until the matter was properly before
him. Be that as it may, however, I am of opinion that there were no ‘decisions’
made by the reporter in respect of which it would be appropriate to pronounce
the declarator sought in para 2(v) of the petition, or the reduction sought in
para 2(vi).
Waiver
In their second and third pleas-in-law, the respondents plead that
the petitioner is barred by mora, taciturnity and acquiescence, et
separatim waiver, from challenging the validity of the respondents’
decisions to call in the application for listed building consent and appoint
the reporter to conduct the inquiry in relation to it. In the course of the
hearing, counsel for the respondents abandoned those pleas so far as based upon
mora, taciturnity and acquiescence. The only submission that they sought
to maintain was that the petitioner had, in the circumstances, waived its right
to challenge those decisions.
Mr Brodie, for the respondents, in introducing his submissions upon
this point, referred to a passage in Clyde and Edwards on Judicial Review,
para 13.23, in which, in discussing acquiescence, the authors say:
Where there has been action from which acceptance of a situation
and the surrender of a right may be inferred, the more appropriate term is that
of waiver, which is also a question of fact (Armia v Daejan 1979
SC (HL) 56). In such a case it is not necessary to plead prejudice (Banks
v Mecca Bookmakers 1982 SC 7…)
Mr Brodie’s submission was that, in correspondence with CGC in
September and October 1999, the petitioner first indicated that its preference
would be for the called-in application for listed building consent to be dealt
with by written submissions, then changed its mind and indicated that it would
prefer a public inquiry, but expressed no challenge to the fact that the
application had been called in. No such challenge was expressed until the procedure
meeting on 14 March 2000. In these circumstances, it was to be inferred that
the petitioner had accepted the validity of the call in, and had abandoned its
right to challenge it. Mr Brodie sought to derive further support for that
submission from Clancy v Caird, in which it was held that, had
the objection to the
independence and impartiality of the temporary judge been well
founded, the pursuer would have been held to have waived his objection by
proceeding to proof rather than taking the point when the case was first
allocated to the temporary judge: see per Lord Sutherland at para 14,
p554D-K, and Lord Coulsfield (with whom Lord Penrose agreed) at paras 52 to 56,
pp564K-565H.
In response to that argument, Mr Steele made a number of points. In
the first place, he pointed out that part of the objection to the reporter’s
lack of independence and impartiality was that he held a part-time appointment,
and that was so only from 1 April 2000. That aspect of the objection was
therefore not available earlier, and could not be said to have been waived. So
far as the position of the respondents was concerned, the petitioner’s concern
was that the issue of demolition should not be reopened. It was only in early
2000, when Historic Scotland reinspected the subjects, that it became clear to
the petitioner that the intention was to reopen the issue of demolition.
Thereafter, the matter was raised at the first opportunity, namely at the
procedure meeting. Clancy v Caird was distinguishable, because
there the pursuer had allowed the case to go to proof without raising his
objection. The equivalent situation would only have arisen if the petitioner
had allowed the inquiry to proceed without taking objection.
It seems to me that the question that the respondents’ second and
third pleas pose is whether it can be inferred from the petitioner’s actings
that it has tacitly, but unequivocally, given up or abandoned its right to
maintain the objections that it now seeks to maintain to the validity of the
respondents’ decisions to call in the application for listed building consent
and to appoint the reporter to conduct the public inquiry: Armia v Daejan
Developments Ltd; Clancy v Caird per Lord Coulsfield at
p565B. I note that in Clancy v Caird, the court discussed a
number of ECHR cases on waiver in the context of Article 6(1), but these were
not cited to me.
There is, in my view, force in Mr Steele’s submission that, in so
far as the petitioner’s case turns upon the part-time nature of the reporter’s
appointment, there can be no question of waiver, because that situation only
arose on 1 April 2000. But, if the matter were to turn on that point, it would
be necessary to identify to what extent the petitioner’s case depended upon
that factor. Because of the respondents’ admissions that neither they nor the
reporter were independent and impartial, that issue was not fully explored in
the parties’ submissions. I am not persuaded that there is much force in Mr Steele’s
point that it was only when Historic Scotland reinspected the subjects in early
2000 that it became clear that it was proposed that the issue of demolition be
reopened. As Mr Haddow pointed out, that was Historic Scotland’s stated
position in its response to informal consultation in April 1999, and its view
to that effect was recorded in the CGC committee reports in July 1999. In any
event, it seems to me that the question of whether demolition was to be in
issue was relevant to the petitioner’s challenge to the respondents’ decisions
on the ground of irrationality (which I have rejected), but not to the
challenge under Article 6(1) (which is the challenge that I have held to be
well founded). So far as the Article 6(1) point is concerned, I am
of opinion that it could have been taken as soon as the decisions that were to
be challenged had been taken. Since the point could have been raised (as it has
been) in a petition for judicial review, it is not, in my view, sound to
maintain (as Mr Steele did) that the procedure meeting was the first occasion
upon which the point could be taken. In the end, therefore, it seems to me that
the narrow point raised by the respondents’ second and third pleas is whether
the inference of unequivocal abandonment of the right to challenge the call-in
decision and the decision to appoint the reporter should be drawn from the mere
fact that, without stating its challenge, the petitioner exercised its right of
election as to whether the called-in application should be dealt with by
written submissions or by public inquiry. Having regard to the nature of the
present case and the identity of the parties (cf Clancy v Caird per
Lord Coulsfield at p565G-H), I do not consider that it would be right to infer
abandonment of an important and substantial objection to the validity of the
respondents’ actings upon such a narrow and technical basis. It might, in my
view, have been different if, as in Clancy v Caird, the
substantive hearing (in that case the proof, in this case the public inquiry)
had been allowed to take place to a substantial extent without the objection
being expressed. In the circumstances actually relied upon in the present case,
I am of opinion that the petitioner is not to be inferred to have waived the
objection that I have held to be sound.
Result
I shall accordingly:
1. to reflect (a) my rejection of the respondents’ case of waiver
and (b) their abandonment of their case of mora, taciturnity and
acquiescence, repel the respondents’ second and third pleas-in-law;
2. to reflect my rejection of the challenge to the ‘decisions’ of
the reporter, repel the petitioner’s second plea-in-law;
3. to reflect my rejection of the petitioner’s argument based upon
irrationality, but my acceptance of its argument based upon Article 6(1),
sustain the petitioner’s first plea-in-law in part only, to the effect of:
4. finding and declaring that the respondents’ decision to
determine the petitioner’s application for listed building consent in respect
of the subjects at 105-107 West Regent Street, and 112 Wellington Street,
Glasgow, and their appointment of Mr GMM Thomson to hold a public inquiry and
report with respect to the said application, were ultra vires of the
respondents by virtue of section 57(2) of the Scotland Act 1998, in respect
that they constituted acts incompatible with the petitioner’s rights under
Article 6(1) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms; and
5. granting decree of reduction in respect of the said decision and
the said appointment.
