Inner House case considering an appeal from the Outer House in which a residents group challenged decisions made by East Renfrewshire Council (1) to grant planning permission and (2) to confirm fulfilment of a planning condition relating to drainage, in respect of a proposed development at Ayr Road in Newton Mearns.

The residents group had applied for a protective costs order (which puts a cap on a party’s liability for the expenses of the court action.) Protective costs orders can be granted where the issues raised are of general public importance and where the applicant has no private interest in the outcome of the case. However, in the Outer House, Lord Tyre refused the application on the basis that the issue was one of local community interest rather than general public importance.

The Inner House refused the appeal. After noting that the residents group could fairly be characterised as an association of local residents whose primary objective was the safeguarding of their respective private interests, the court came to the conclusion that the issue was not one of general public importance:

“What is challenged, in the sense of being sought to be reduced, is a planning permission for a relatively modest development. Any increased risk of flooding is of importance to all the individuals who fear that their properties may be affected. In a sense it is true to say… that flooding is a matter of public concern and that in the event of an incident of flooding public services are engaged. None of that makes what is in issue here a matter of general public importance. The interests involved are predominantly local and predominantly private. There may be applications for judicial review where the issues raised are at once local and yet of general public interest. This is not such an application.”

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.

Outer House case in which the liquidators of Scottish Coal sought directions from the court in respect of several disused open cast mining sites owned by Scottish Coal.

The sites were subject to onerous statutory obligations aimed at controlling land use, protecting the environment, habitats and birds and ensuring public safety. The sites were also subject to obligations under planning legislation requiring restoration of the sites, the cost of which was estimated at £73m.

The liquidators sought directions as to whether they could abandon or disclaim:

1. the sites, thereby transferring ownership to the Crown; and
2. the statutory licences/permits authorising Scottish Coal to carry out its industrial activities (and imposing the obligations on Scottish Coal).

The Scottish Environment Protection Agency (SEPA) and Scottish Natural Heritage (SNH) were represented in court and argued that it is not possible for liquidator to do so as, under Scots law:

a)    there is no power to abandon the ownership of land; and
b)    ownerless land is an impossibility.

No authority could be found supporting the idea that an owner could abandon land in Scotland. However, after considering Roman Dutch law[1] and the German Civil Code[2], Lord Hodge found[3] that it may be possible for an owner to abandon land[4] and circumstances may arise when, on a disclaimer by the Crown, land becomes ownerless.

But, whilst the liquidators generally have power to disclaim property, where the company’s use of the land is governed by statutory permits, his ability to disclaim would depend upon the terms of the statutory provisions and the permits.

In this case the decision depended on whether the court took a wide interpretation (as argued for by SEPA and SNH) or a narrow interpretation (as argued for by the liquidators) of the relevant legislation[5]. Lord Hodge came to the conclusion that the Scotland Act 1998[6] required him to take a narrow interpretation leading to the conclusion that the liquidators could disclaim the sites and release themselves from the obligations.

The full judgement is available from Scottish Courts here.

(NB: see Inner House decision here)

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

Inner House case in which the Cairngorms Campaign and others applied to the court for reduction of a decision by the Cairngorm National Park Authority to adopt the Cairngorm’s National Park Local Plan. In particular they complained about the adoption of development policies in the Local Plan which made provision for developments at Nethy Bridge (40 dwelling houses and business units),  Carrbridge (up to 117 dwelling houses), An Camas Mòr  (1,500 dwelling houses) and Kingussie (300 dwelling houses).

In the Outer House Lord Glennie rejected the campaigner’s arguments finding that, in adopting the Local Plan, the Park Authority had neither acted unlawfully or illegally (in the Wednesbury sense – i.e. it had not reached a decision that no reasonable person in that position properly informed of the facts could have reached) nor had it failed to give adequate reasons for its decision, the reasons given for the decision being clear. In coming to his decision, Lord Glennie also rejected a number of more specific arguments made by the campaigners.

The campaigners argued that Lord Glennie had erred in law by failing to appreciate what was necessary in terms of the  “appropriate assessment” required  under  the Conservation (Natural Habitats etc) Regulations 1994 (implementing Habitats Directive 92/43/EEC) when assessing the implications of the Local Plan on the Park’s conservation objectives. They contended that a far more detailed assessment should have been made at the point the Local Plan was approved.

This argument was rejected by the Inner House which agreed with the decision of Lord Glennie. Although referred to as an appeal, it was appropriate to consider the campaigners’ action on judicial review grounds. Taking that approach, the Park Authority’s appropriate assessment could not be said to be one which no reasonable authority would have produced in the circumstances. It was, therefore, open to the Authority to adopt a Local Plan which relied on that assessment.

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.

Outer House case concerning a Property Enquiry Certificate obtained by Manorgate from First Scottish which failed to reveal that the site for which the certificate was obtained was designated as being one of archaeological significance. It intended to demolish the existing buildings and erect new commercial premises. One of the new units was to be used as a retail branch for its flooring business. The other units were to be let to complementary traders. However, following purchase of the site, the designation led to Manorgate mothballing it after concluding that the intended development was uneconomic. Manorgate then sued First Scottish for damages in respect of (a) the lost capital value of the Site (b) site investigation costs; (c) trading losses; and (d) development losses.

First Scottish accepted that the Certificate should have referred to the archaeological designation and that they had been negligent in omitting it. However, amongst other things, they argued that (1) the omission had not caused Manorgate’s losses (2) that there had been contributory negligence on Manorgate’s part and (3) Manorgate’s losses were too remote to have been foreseeable by First Scottish.

Lord Woolman rejected the First Scottish defences and awarded damages (albeit the damages were reduced as some of the losses were not foreseeable).

Causation
Lord Woolman found that Manorgate had relied on the certificate and would have withdrawn from the missives for the purchase of the site if the certificate had been accurate.

Contributory negligence
First Scottish argued that Manorgate should have queried or double-checked the accuracy of the information in the certificate. Lord Woolman found that a surprising position for it to adopt noting that, if purchasers were obliged to carry out their own separate investigations, it would deprive Property Enquiry Certificate of any real utility.

Foreseeability
Whilst the diminution in value of the site, site investigation costs and loss of business profits (First Scottish knew the site was zoned for commercial use) were foreseeable, First Scottish could not have reasonably foreseen a sequence of events that led to the buildings being demolished. Nor could they have foreseen that the purchaser of the site would both seek to carry on business there and also sell the site and generate development profit and, as a result, no damages were awarded for development profit.

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.

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Outer House case in which Mrs Hoblyn sought reduction of a decree authorising the bank to take possession of a house occupied by her, suspension (and interim suspension) of a notice of ejection against her and interdict (and interim interdict) preventing the bank from selling the house. The Court initially granted orders temporarily suspending the eviction and preventing the sale of the house. However, the bank sought recall of those orders.

The house had formerly been the matrimonial home shared by Mrs Hoblyn, her former husband and their children but it was owned solely by Mr Holbyn. Mr Holbyn had not lived in the house since the couple separated in 1994 and he was later sequestrated. The bank, which held a standard security over the house, had taken action to repossess and sell the house after the related loan account fell into arrears.

Mrs Holbyn’s ground of challenge appeared to be that the correct statutory procedure had not been followed. She gave evidence of the actings of her former husband who she said (unbeknown to her) had acted in bad faith in his financial dealings and also challenged the good faith of his sequestration, arguing that he had arranged his own sequestration to avoid debts he had incurred.

Although Lord Drummond Young sympathised with Mrs Holbyn’s predicament and accepted that she was likely to suffer hardship, he found that she had failed to make anything approaching a prima face case. It had been clear that the bank had done everything required of it by way of service on Mrs Holbyn and procedure under the legislation. The problem was that the house was subject to a standard security in respect of a loan to Mr Holbyn and that loan payments had not been made. In those circumstances the bank was entitled to enforce the security, if necessary by repossessing the house and selling it. The fundamental objectives of the law of heritable security would be frustrated if that course were not available. Consequently, Lord Drummond Young recalled the interim suspension and interdict the court had previously granted.

The full judgement is available from Scottish Courts here.

Mrs Holbyn sought and was refused an interim interdict preventing the eviction and an appeal against that decision was also refused in the Inner House ([2014] CSIH 52).

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

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Inner House case relating to the compulsory purchase of land required for the Borders Railway. At the centre of the case were certificates of appropriate alternative development issued to developers with an interest in the land (in terms of s25 of the Land Compensation (Scotland) Act 1963). Section 25 certificates specify the classes of development for which the land would be suitable if the compulsory purchase does not go ahead. In this case the certificates stated that planning permission would have been granted for various residential and business developments if the compulsory purchase did not go ahead. Network rail argued that the certificates should have stated that planning permission would only have been granted for the development for which the land was to be compulsorily acquired (i.e. the Borders Railway) which would have reduced the compensation payable to the developers and  appealed to the Scottish Ministers on that basis. However, when they failed to comply with the Ministers’ Reporters’ request for documentation (the certificates and applications) within the time limit, the Reporter concluded that Network Rail’s appeal was deemed to have been withdrawn. Network Rail then made a further appeal to the court.

On a construction of the Reporter’s correspondence with Network Rail, it was found that the documents had been requested and time limits imposed (there was argument to the effect that the Reporter had indefinitely suspended the time limits) in line with the legislation.

In terms of the relevant legislation (the Land Compensation (Scotland) Development Order 1975), the applicant required to “furnish” the reporter with the documents within the time limit. Network Rail contended that, although the documents had not been sent to the Reporter, they had been available on the planning authority’s website and should be treated as being “furnished” in terms of the legislation. However that contention was rejected by the court:

“The court is not satisfied that the placing of material on a website, without something more, is sufficient to amount to the “furnishing” of that material to another for the purposes of statutory interpretation. There may be circumstances in which such information may be furnished by, say, providing a hyperlink to a website, where it has been made available, or uploading the information to a particular website at the request of the intended recipient. Where a party does nothing, however, there is no act which might be construed as “furnishing” the information to anyone. The [Reporter] cannot be expected to seek out the information required … on the basis that it may or may not be in the public domain.”

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.

Inner House case concerning 3 actions by AMA in which they sought payment of the purchase price under concluded missives for the sale of properties after the purchasers had failed to pay and advised AMA that they were unable to proceed with the purchases.

The purchasers argued that the contract was incomplete and that a seller can only sue for payment of the purchase price where no action is required by the purchaser to complete the contract. In this case, as the purchasers still had to make payment of the price and to accept the dispositions, they contended that the only option open to AMA was to accept their repudiation of the contract and sue for damages.

That argument was rejected by the court. It is a well-established rule of Scots law that if one party to a contract repudiates it, the innocent party has an option to accept the repudiation and sue for damages for breach of contract, or[1] to seek enforcement of the contract. If the purchasers’ arguments were accepted, the innocent party’s option could be negated simply by the repudiating party declining to pay the sum due in terms of the contract. Here, the purchasers were required to pay the purchase price on the date of entry. The date of entry was not dependent on anything being done by either of the parties and was not a matter within the control of the purchasers. There was no contractual obligation on the purchasers to accept a disposition and no other contractual obligations incumbent on them which had to be completed in order to render the contract complete. All they required to do was to pay the price. Their refusal to do that could not deprive the sellers of their option to seek enforcement of the contract.

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.

Inner House case considering an appeal by North Lanarkshire Council under s239 of the Town and Country Planning (Scotland) Act 1997.  It concerns a planning application by Shore Energy in respect of a waste management and renewable energy plant at Carnbroe near Coatbridge. The Council refused permission for the plant despite a recommendation by planning officials that the proposal be accepted. However, Shore Energy appealed to the Scottish Ministers against the refusal of planning permission. After an inquiry, reporters appointed by the Scottish Government granted planning permission subject to conditions. The Council then appealed to the court under s239.

The crux of the dispute was the relative weight given to local planning and environmental considerations, on the one hand, and national environmental objectives on the other. The Council’s reasons for rejecting the proposals indicate that priority had been given to local considerations whereas the reporters’ decision had treated the national need as a material consideration and regarded local considerations as subordinate to it.

Lord Stewart had refused the appeal in the Outer House and the Inner House refused a further appeal agreeing that the Council had failed to show that the reporters’ decision had been invalid. The court was not persuaded (1) that the reporters’ Decision Notice disclosed anything other than a correct understanding of the Scottish Government’s waste management policy (which had been amended  the day before the inquiry) and (2) that the reporters required to identify any geographical area other than Scotland (as a whole) as being relevant to their considerations.

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.