The Office of the Public Guardian (Scotland) is not currently able to meet its target turnaround time of registering Powers of Attorney within 30 working days from receipt.

Not surprisingly the OPG is receiving a significant amount of telephone calls from customers seeking confirmation that it has received their Powers of Attorney for registration.

The OPG currently estimate that registration should be notified within two months of the Powers of Attorney being sent to the OPG.

Outer House case considering the meaning of “waste” in terms of the lease of a landfill site near Stranraer.  The lease provided that the tenants (Shanks) were to make royalty payments to the landlords (Landmore) for “inert waste” entering the site.

The question for the court was whether soil which had been brought on to the site for the purpose of capping cells of waste deposited at the site was also “inert waste” and therefore subject to the royalty payment.

Lord Menzies found that the soil was “inert waste”.  In coming to that conclusion, he noted that the exercise was one of construction of a private commercial contact and thus differed from cases in which the courts were construing EU directives or regulations (albeit he noted in passing that the decision he reached was in line with authorities concerned with the interpretation of the EU regime).

The soil came from a construction site on which houses were being built. It was discarded by the developer who paid haulage contractors to take it away and was an unwanted by product caused by the need to provide flat foundations for the houses. Nothing was done to it before it entered the landfill site. As such, Lord Menzies took the view that the soil fell within the ordinary and natural meaning of “waste”. Although it was useful to Shanks, Lord Menzies did not consider that it was appropriate when considering the parties intentions objectively to view the situation from the perspective of the potential user of the material pointing out that anything –or almost anything –can be put to use by someone.

“Having consumed all the meat from a roast leg of lamb, I may discard it into my household rubbish. It is useless to me. My dog may have a different view of its usefulness, and may retrieve it for his own purposes – but despite its usefulness to him, it remains waste.”

The full judgment is available from Scottish Courts here.

 All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

The Sunday Herald reported yeserday that Erskine’s Edinburgh care home had received a critical report from Social Care and Social Work Improvement Scotland (SCSWIS).  It was also reported that the Chief Executive Officer of Erskine, Major Jim Panton has resigned.   A spokesman for the care home stated that the resignation was not connected to the critical report.

The inspection report found prescription drugs had not been administered properly, and fluid and food intakes had not been recorded.

The article is available here.

Visitors to Parisian cemeteries will soon be greeted by touchscreens helping them to find the graves or tombs of relatives and notable residents.   Given the increase in burial charges at a number of Scottish Councils over the last few months it would be nice to see our Councils coming forward with their own forward thinking proposals.

Case considering the grant of planning permission for a wind farm at Fallago Rig in the Lammermuir Hills.  Due to the large capacity of the development, consent was required by the Scottish Ministers in terms of the Electricity Act 1989. Consent was granted by the Scottish Ministers by a decision letter in November 2010. In terms of the legislation that consent is also deemed to be planning permission for the development.

There were a number of interested parties who objected to the development leading to two public enquiries and what is described as voluminous correspondence.  The petitioners sought reduction of the decision letter on various reasons (including natural justice, ultra vires, unlawful conditions and inadequate reasons), however, the main thrust of their argument was bias.

The petitioners argued that, while it was quite lawful for elected representatives to be predisposed to renewable energy (it being Government policy to encourage the development and use of renewable energy from natural sources), it was not lawful to pre-determine an application which fits that policy without first considering the objections. In this case the petitioners argued that the government had made up their mind to bring about the conditions in which consent could be granted. They argued that the Government had had covert conversations with the MOD (which was the main objector to the development on the basis that the turbines could interfere with radar systems) and those conversations were successful as the MOD withdrew its objection. This, they argued, showed bias.

After detailed consideration of the authorities Lord McEwan looked to the test for bias in Porter v Magill (2002) in which Lord Hope came to the conclusion the test was:

“… whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that …” (the decision taker) “… was biased”

Lord McEwan took the view that the best guidance on the application of that test to a planning case was given in R (Lewis)v Redcar and Cleveland Borough Council (2009) which made it clear that a Minister’s position is different from someone holding a judicial or quasi judicial office:

“… the requirement made of such decision makers is not, it seems to me, to be impartial but to address the planning issues before them fairly and on their merits, even though they may approach them with a predisposition in favour of one side of the argument or the other. It is noticeable that in the present case no complaint is raised by reference to the merits of the planning issues. The complaint, on the contrary, is essentially as to the timing of the decision in the context of some diffuse allegations of political controversy. So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination or what counts as bias for these purposes. Something more is required… ‘ unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision … “

After considering the documents and evidence, Lord McEwan found that, far from showing pre-determination on the part of the Minister, there was a great deal to indicate the opposite i.e. an open fair mind. He also failed to find that the conduct of the Minister could be criticised noting that “in the realm of administrative law there is nothing wrong with the decision taker meeting an objector.”

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Guidance on the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011. The Circular supersedes the guidance previously given in Circular 1/2003.

The Scottish Government, 1 June 2011

Southern Cross, which operates across the UK, has announced that it is reducing its rent payments and cannot afford to meet its annual rental costs of £230million. Southern Cross has 98 care homes with around 4,000 elderly residents in Scotland.

Age UK claimed in a report published today that care and support for older people in England has reached breaking point.   The report claims that 800,000 people who currently need care receive no formal support from the state or private sector agencies.

A copy of the report can be found here.

Scottish Borders Council has voted to increase what it charges for the purchase of a burial plot for 2011-12.  The cost will rise from £284 to £450.  The reason given was that Scottish Borders Council was charging significantly less than the average charged by Scottish local authorities.

A reminder that furnished holiday lettings may be affected by three major taxation changes.  Two changes apply from April 2011.  The first of these is that the profit or loss from a FHL in an EEA country other than the UK (European Economic Area is the EU countries plus Iceland, Liechtenstein and Norway) has to be calculated separately from a profit or loss arising from UK holiday lettings.  Profits and losses from outwith the EEA also have to be calculated separately.  Also from 2011 it will no longer be possible to set a loss made from FHL properties in the UK or overseas against other income to generate a tax repayment.  As from April 2012 the periods that a property may be let to qualify for the FHL tax reliefs are to be extended.   These changes are likely to mean that some FHL businesses will no longer be profitable.