News archive

Petition for Judicial Review in which Mr McGinty sought reduction of the National Planning Framework for Scotland 2 (NPF2) to the extent that it designates a new power station and transportation hub at Hunterston. Mr McGinty’s argument was that the Scottish Ministers had not complied with their obligations relating to notice and consultation with regard to the proposed development.

Outer House decision
In the Outer House Lord Glennie found that, although Mr McGinty (a bird watcher living 5 miles from the proposed development) had title to raise the action, he did not have “a real and legitimate interest to protect” or a “real and practical” interest to bring the proceedings. Lord Glennie also found that Ministers had not been shown to have failed to comply with their notice and consultation requirements.

Inner house decision
The Inner House has refused an appeal. It was unable to conclude that the Minister’s statutory requirements on publicity had not been fulfilled (finding that advertising in the Edinburgh Gazette was sufficient to comply with the requirement that the plans be advertised in a newspaper circulating in the area). It also found that the consultation period had not been obviously inadequate and noted, when considering the adequacy of the consultation documents, that as NPF2 was at a more general/higher level of qualifying plans, there was less need for a comprehensive environmental report. (On the basis a specific environmental impact assessment would still be required before the project actually proceeded).

However, in coming to its conclusions, the court did find that Mr McGinty had sufficient standing to raise the action holding that, the fact that the matter was one of public interest and Mr McGinty shared his interest with many other Hunterston residents, did not prevent him relying on that interest as an individual in order to complain.

“We have yet to consider the specifics of the petitioner’s challenge but applying the approach now desiderated by the Supreme Court, it may not be permissible to dismiss it as that of a mere busybody. He lives in an area which he has good reason to believe may be affected by a specific sort of development which will have an adverse impact on a specific coastal environment, about which he avers he is knowledgeable and in which he pursues a specific leisure activity which is of importance to him, as it is of importance to many others. He wished to make representations on the very matter which would have been relevant to the environmental assessment which the respondents were obliged, by both domestic and European law, to carry out. Accordingly, at least at this stage of the examination of the question, it appears that it can be said that the petitioner has standing to bring these proceedings.”

The full judgement is available here.

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

HMRC’s guidance for completing paper Stamp Duty Land Tax  returns has been updated.  The updated guidance can be found here. 

Inner House case (for appeal to Supreme Court, see here) concerning agreements between RBS and a property developer. In July 2007 the bank and the developer entered written agreements for loans of £845k and £560k in respect of the purchase of  two plots of land at Gleneagles on which the developer was to build two houses.

The repayment date for the loans was in August 2008 and, when the developer failed to repay the loans at that date, the bank sued the developer for recovery of the funds. However, the developer counter claimed arguing that he had only entered into the loan agreements on the basis of assurances given by the Bank that it would make additional funding (of up to £700k) available to fund development on the plot and claimed damages in respect of the bank’s breach of those assurances. The assurances said to have been given by the bank included a telephone call prior to the signing of the agreements in which the developer was told that, in addition to the sums lent to buy the land, the bank would advance further “funding for the development”.

In the Outer House Lord Glennie found that bank had agreed a “collateral warranty” obliging them to lend for the development of the plots. However, the Inner House allowed an appeal finding that the telephone call only amounted to a statement of future intention and that legal obligations would only arise when the parties entered a written contract.

“If the [developer] considered that the [written agreements] did not properly reflect what he understood was to be agreed, or had been agreed orally, then he ought not to have signed the agreements. At all events, whatever the [developer] thought was the position, the informed observer would understand the written agreements to cover all matters agreed to date. It may well be that, at that time, the [bank] fully intended to enter into a further bargain with the [developer] to advance additional funding for the building works. However, they had not done so and did not do so. That may have been contrary to the spirit of the negotiations prior to the signing of the written agreements, but that spirit, or its moral content, cannot be taken as creating a legally binding voluntary obligation.”

The full judgement is available from Scottish Courts here.

(NB: See Supreme Court decision here.)

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

Where to start.  Given it is now just over a year to the referendum that seems a suitable place to start.

There is increasing discussion, mostly criticism, concerning the failure of the ‘NO’ campaign to come up with a credible proposal for substantial additional powers for the Scottish Parliament. That said, the likelihood of a joint proposal from the ‘NO’ side is extremely unlikely.  Some want powers removed from Scotland in the event of a ‘NO’ vote.  Some do not want any more powers devolved to Scotland and insist that in any case that is a decision for the whole of the UK.   Even those who argue for greater powers for the Scottish Parliament are only arguing for three or four relatively minor tax powers.  Two of my earlier bogs on this issue outline the proposals in more detail and also how these extremely modest proposals would not take effect for at least a decade.  These blogs: “Tax powers so far refused by Westminster” can be found here and “Likely timescale for additional Scottish tax and fiscal powers” can be found here. Substantial welfare powers are of course not even being considered by the Unionist parties.    

A good example of how few powers are being considered can be found in this interview of Michael Moore.  The article on this can be found here.  It is worth noting that this is the view of the Liberal Democrats supposedly the strongest advocate of increasing the powers of the Scottish Parliament.

Another factor of this debate that as yet is not being widely commented upon are the anomalies that can arise under devolution.  Take for example inheritance tax.  Inheritance tax is controlled by Westminster but succession law and social care are controlled by Holyrood. Does that make any sense?  Of course not.  With this in mind please see the following article from the Scotsman which can be found here.

Now to specifically Scottish tax matters.

A “Revenue Scotland and Tax Powers Bill” will establish a new authority for the collection of devolved taxes from 2015.  The First Minister described this as a “historic step”, but also just a “first-step” – since Scotland would still only collect 15% of all taxation revenue and the Parliament would remain a “spending chamber rather than a revenue raising chamber”.  More on this can be found here.  This is an important landmark in the creation of a Scottish tax system.

No-one I suspect was surprised at this announcement.  “Scottish and Welsh red meat levy bodies are unlikely to recoup levy money lost when animals are slaughtered in England, UK farm minister David Heath has said.”  More on this can be found here.  This type of argument, in short Westminster knows best, has of course been made many times before.  Some matters where this argument has been used include: fossil fuel levy, attendance allowance, VAT and the new Scottish police and fire services, energy transmission charges, mobile phone coverage, delivery charges and local income tax.  The UK Government’s attitude to relatively minor issues such as the so called “meat levy” simply adds to the doubt that the UK Government will act in a positive way to calls for further powers to be devolved in the event of a ‘NO’ vote.

The Scottish Parliament’s Finance Committee has welcomed proposed new legislation which will see Scotland take responsibility from the UK Government for landfill tax.  The Committee also welcomed proposals to impose landfill tax on unauthorised disposals to landfill following the identification of illegal sites and to increase the credit limit on contributions to the Landfill Communities Fund, which provides funding for community or environmental projects in areas affected by landfill sites.  More on this can be found here.

Now to the “bedroom tax” or to give it it’s Sunday name, “spare room subsidy”.

Social housing residents affected by the UK Government’s “bedroom tax” may be able to appeal depending on the size of their spare room, after a tribunal ruled the size of a room has to be taken into account when imposing the controversial policy.

The UK Government has played down the implications of the ruling.  A spokeswoman for the Department of Work and Pensions said: “It is simply not affordable to pay housing benefit for people to have spare rooms, and our reforms in the social sector mean families receive help for the number of bedrooms they need, and these are exactly the same rules as in the private sector.” Meanwhile, a United Nations special investigator has described the bedroom tax as a “shocking” policy which could constitute a violation of the human right to adequate housing.

More on this from the Scotsman can be found here and the Guardian here.  This policy, it is argued, shows the widening gap on welfare matters between Holyrood and Westminster.

Now to the tax avoidance debate. Let’s start with some irony.  An adviser to HMRC has had to resign as a result of an investigation by the BBC.  The irony is the BBC’s own attitude to severance payments and tax avoidance schemes involving its own staff.  More on this can be found here.

Further evidence as to how we are definitely not “all in this together”.  Top civil servants are having some tax paid using public money, a newspaper investigation has revealed.  More on this can be found here.

And finally on tax avoidance. “It is not possible to construe a director’s duty to promote the success of the company as constituting a positive duty to avoid tax.”  The legal advice quoted may well turn out to be one of most important contributions to the tax avoidance debate.  More on this can be found here.

Now to matters further afield.

In response to a question asked in the Spanish parliament, the Spanish Government was obliged to disclose the amount of unpaid tax owed by professional football clubs in the country’s top two divisions. The sum was a staggering €663,876,441 (about £575m).  More on this can be found here.

The number of Americans renouncing their US citizenship has jumped by a factor of six in 2013, according to official figures. The reason is generally accepted as the difficulties caused to expatriates by the soon-to-be-active “Foreign Account Tax Compliance Act”, in conjunction with the USA’s extra-territorial taxation system.  More on this can be found here.

Sheriff Court case in which the tenants under a short assured tenancy of property at Cumberland Street in Edinburgh sought to enforce the terms of the Tenancy Deposit Schemes (Scotland) Regulations 2011 against their landlord (an experienced property agent).

The landlord terminated the lease (on 12^th January 2013) and retained the tenants’ deposit of £1150. When the tenants contacted the landlord to recover the deposit (on 17^th February 2013), the landlord  claimed that he was entitled to retain the deposit due to damage caused to the premises by the tenants (but failed to produce any evidence). After lengthy correspondence between the parties the landlord repaid half the deposit to the tenants.

The 2011 Regulations obliged landlords to pay deposits to the scheme administrator of an approved tenancy deposit scheme by 24th November 2012 and also provides a free dispute resolution scheme in relation to the return of the deposits. If a landlord fails to comply with his obligations under the regulations, he is obliged to pay an amount not exceeding three times the amount of the deposit to the tenant.

The landlord admitted that it had failed to comply with his obligations under the regulations but argued that, following the correspondence, the parties had settled the matter and that, as the most the tenants would have been entitled to in terms of any arbitration under the statutory dispute resolution scheme was £1150, payment of three times the deposit was excessive.

The sheriff ordered that an amount of £3450 be paid to the tenants. The amount to be paid was not compensatory; it was a sanction or a penalty analogous to an award of punitive or exemplary damages[1]. In exercising the courts “unfettered discretion” when assessing the amount to be paid, the sheriff took account of the following:

“In this case the landlord was someone who may be presumed to have special knowledge of his obligations both in terms of the 2011 Regulations and the 2004 Act[2]. He failed to comply. It is averred that it was due to “oversight”. No further information was provided by [the landlord's solicitor]. In my opinion no proper explanation for his failure has been provided. He claimed retention of the pursuers’ deposit but failed to produce any evidence to support his claims. Had the dispute resolution procedure been available he would have been unable to seek retention of any part of the deposit without producing relevant evidence. The pursuers were placed in an invidious position and a compromise was reached on economic grounds. The fact that offers to settle this action have been made is in my opinion irrelevant to the issue to be determined.”

Sheriff Court case concerning an application by Edinburgh Woollen Mill to renew its lease of premises on the Lawnmarket in Edinburgh under the Tenancy of Shops (Scotland) Act 1949. Their landlords (trustees for the firm of Gold Brothers) were trading competitors and had served a notice to quit on the Woollen Mill requiring them to leave the premises at the end of the lease.

The 1949 Act allows a sheriff to determine that a tenancy be renewed for a period of up to a year at a rent, and on terms and conditions, that the sheriff thinks are reasonable. The purpose of the Act was to prevent small shopkeepers being evicted by speculators who purchased properties and gave the shopkeepers the option of either buying at an exorbitant price or being evicted.

After noting that the mischief which the Act was designed to address is no longer self-evident today and was not apparent in the circumstances surrounding the lease in question, the Sheriff refused the Woollen Mill’s application:

“[The 1949 Act] empowers, and requires, the court to act to avoid injustice, in the historic context of widespread economic oppression of small-scale shop traders. The types of protection envisaged includes allowing the trader time to relocate to another property, to preserve his business and goodwill, or to avoid the trader being forced out of business altogether through removal of premises from which to trade.

Turning to the present case, it is at once apparent that no such considerations exist. The parties have both known, since the defenders acquired the landlord’s interest approximately six years ago, that the lease would not be renewed consensually. That has left the pursuer plenty of time to anticipate and prepare for the trading realities that this would bring. The pursuer’s business will be somewhat diminished by ceasing trade from the premises, but otherwise continues uninterrupted, from its 300 other outlets. There is no threat to its goodwill or good name, as it can adapt other stores to carry their name, if they wish. The present dispute represents no more than an attempt to retain a highly successful site, and to keep it from a direct competitor. Such an attempt is understandable… ….It is, however, only an economic blow. It is not an injustice, and there is nothing unreasonable in requiring the pursuer to remove at the end of the lease.”

 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.

Issue
Outer House case in which property developers sought to appeal a decision of a reporter appointed by the Scottish Ministers. The reporter had refused an appeal by the developer of Perth & Kinross Council’s decision to reject a planning application for a mixed use development (initially including 1800 and latterly 1500 houses) adjacent to Huntingtower and Ruthvenfield in Perthshire.

The developers’ challenge was based on grounds of irrationality in various forms but also raised the issue of the significance to be attached to an emerging local plan as a material consideration when making planning decisions.

Background
The Perth area local plan (adopted in March 1996) included the developers’ site as a long-term development site. However, the Council refused permission for the development on 4 January 2012 on the basis that it did not comply fully with the development plan. On 10 January a decision was made to amend a new and emerging development plan (not yet adopted) so as to remove the developer’s site from the proposed housing allocation. As a result, the emerging local plan, which was published in January 2012, did not include the developers’ site within the housing allocation.

On 12 September 2012 the Scottish Minister’s reporter refused the developer’s appeal of the Council’s refusal of planning permission. The reporter found that the emerging local development plan was a material consideration and the conflict between it and the developer’s application was sufficient to justify refusing the permission (and thus departing from the adopted existing local plan).  The developer argued (amongst other things) that the reporter had been wrong to do so and also that the decision to remove the developers’ site from the housing allocation in the emerging plan (on 10 January 2013) was simply a consequence of the Council’s rejection of the developers’ planning application (on 4 January).

Decision
Lord Glennie refused the appeal. The reporter had been entitled to consider whether the emerging local development plan was a material consideration. The developer’s site was of a scale and importance such as to make it of major significance in the development of West/North West Perth. That being so, the fact of the emergence of the local development plan was a material consideration. In such circumstances, while recognising the statutory priority given to the plan-led planning process (i.e. the existing development plan), it was legitimate, when assessing the weight to be afforded to that consideration, to take into account the benefits to the public interest of the wider planning framework of the statutory local development plan process. The reporter found these factors to be of sufficient weight to outweigh the provisions of the existing development plan and her decision had made it clear that she had approached the issue in that way.

Lord Glennie also noted that the reasons for removing the developers’ site from the emerging local development plan (other than the simple refusal of the developer’s application on 4 January) had been before the reporter and that her reference to them had made it clear she had taken account of them.

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.

Good afternoon everyone.

Welcome to the 2013 AGM of the Scottish Borders Chamber of Commerce.

Firstly, by way of introduction to those who do not know me, my name is James Aitken and I am the Convener of the Chamber.   I will make further introductions as we go along.

Before I begin do we have any apologies?

The order of events is fairly straightforward.  I will firstly seek approval of the minute of last year’s AGM.

I will then outline some of what has been happening in the Chamber over the past year.  You will no doubt be relieved to hear I only intend to speak for 20 minutes or so.

I will then ask Craig Little, the Chamber’s Treasurer, to give a review of our finances.  I understand that Craig has brought a number of copies of our accounts for anyone who would like a copy.  Craig will then answer any questions you have.

Then I will ask the other directors and in particular our new Convener and vice- Convener if they would also like to say a few words.

I will then invite questions from the floor.

We should be finished the formal part of the AGM by around 1pm.  I hope that many of you will be able to stay for the buffet lunch.

Firstly to the minute of last year’s AGM.  Does everyone have a copy with them or has seen a copy of the minute?  Are there any questions? Do we have a proposer and a seconder? Thank you.

The location for my final speech on behalf of the Chamber is an apt one.  I grew up in Langlee which overlooks the College and University campus.  My rugby club is just a few yards from here.

I also know from personal experience how important the College is to the Borders and the wider business community.  I left school before my 16^th birthday to start an electrical apprenticeship.  I attended the old Borders College on the Melrose Road to study for my City and Guilds.  When it finally became clear how poor an electrician I was, and that I wanted to go to university, a number of people at the College helped me when I was teaching myself the Highers I needed to get into University.

With this in mind, this is also a good opportunity to introduce Susan Rennie, Employer Engagement coordinator at Borders College.

So to the Chamber and the past year.

“As the leading business membership organisation in the Scottish Borders the Scottish Borders Chamber of Commerce is committed to representing the interests of the business community in the Scottish Borders.”  I am sure that many of you will have seen this phrase used in our press releases and in other Chamber publications and speeches.  This statement is what the Chamber should be judged against.

If one phrase sums up the position of the Chamber this year, as opposed to last year, it is “improving but still lots more to do”.  Our financial position is much healthier, our membership continues to grow and what the Chamber is saying and doing is regularly covered in the press.

This has a great deal to do with the work done by Bruce Simpson, Andrew Collier and Alan King.  Bruce took over our communications role from Harry McGrath just over a year ago, Andrew has dealt with the press on our behalf and Alan King deals with membership.  These are paid positions and done on a month to month freelance basis.

The work done on these fronts has directly contributed to our growing membership which has meant an improved financial position.

Each role is crucial and complimentary.  It may seem obvious but we actually need to meet with our members and listen to what they are saying.  That is something we have simply not done enough of in the past and still need to improve further on.  That is one of the main reasons we created Alan’s role.

Alan, Bruce and Gordon Innes are also working very hard on updating our “member benefits” package just now.

Then there is the amount of positive and regular publicity generated for the Chamber by Andrew and Bruce.  Barely a week has gone by during the last year without the Chamber being mentioned in our local press.  A number of members have given this as their main reason for joining or re-joining when they have met with Alan.  I and a number of other directors have also given a number of TV interviews.   This has given the Chamber a much higher profile than in past years.

I would also like to thank Andrew and Bruce for all the work they did concerning the Ofcom consultation.  It clearly had an impact.  One reason for its impact was that it was part of a wider campaign.  I would like to take this opportunity to thank David Parker, leader of Scottish Borders Council and the Dumfries and Galloway Chamber for their help with this campaign.

It is likely we will soon see improved local news coverage and the showing of a number of programmes from STV.  It is not good for our businesses that the rest of Scotland do not see or hear enough about the great things that happen here in the Borders.  It is also ridiculous that the South of Scotland does not receive programmes such as STV Rugby, Scotland Tonight and the Young Scot Awards.  We could not even watch one of our local MPs debate with the deputy First Minster recently.  The response that you can view Scotland Tonight and other programmes online or on the “STV Player” is simply patronising.

One thing that has become obvious to me over the last two years is that dealing with the press and generating publicity for the Chamber is a job for a professional.  That of course has a cost implication and must be kept under review.  There are though huge benefits to the Chamber both in terms of increasing our membership and how we lobby our elected representatives and various other agencies and quangos.

Social media is also something that the Chamber is embracing.  Thanks in particular to Bruce.   Our new improved website is also just about to be launched.

Now to events.  This is something that the board keeps under review.  We are keen to do more joint events with other local business organisations and that is something the board is working on just now.  Our recent joint lunch with the FSB went very well.   We are also looking at possible joint initiatives with other business organisations such as the Exporters Club.   The benefits of this approach are obvious.

The Chamber has also held a number of very successful events this year.  A huge improvement on the previous year.  Bruce is already promoting our winter events programme.  One thing we have taken on board is that our members would also appreciate more of a chance to meet other members in a more relaxed setting.  “Informal networking on the last Friday of the month” now forms part of the events programme.  Again, as with our media coverage, our events play an important role in our ability to lobby our elected representatives.

Now to our finances.  Craig will outline this in more detail in a few minutes but we are in a much stronger position than we were a couple of years ago.  The Chamber also does not receive any public money.  A situation I personally hope continues.  I would like to take this opportunity to thank Craig for all the work he has done over the past two years regarding our finances.  As already mentioned, the work done by Bruce, Andrew and Alan does have a cost implication and must be kept under review but for the moment appears to be working well.

Now to the lobbying of our elected representatives which I have mentioned a couple of times already.  This is one of the primary tasks of the Chamber and has been one of the Chamber’s priorities over the last two years.  We are very lucky in the Borders that three of our elected representatives hold ministerial positions.  The Chamber has spent a great deal of time putting forward our views on an extremely wide range of topics to our local councillors, MSPs, MPs and MEPs.  That has included the importance of the partial return of our railway, business rates, the Ofcom consultation, the need for an abattoir in the Borders, the upgrading of the A1 and the urgency of improving other main roads, arguing for windfarm development where appropriate, various tourism issues, the strange workings of the so called ‘meat levy’, asking politicians to hold “business surgeries”, various banking issues and the importance of urgently improving our broadband and mobile phone services.

Our politicians want to engage with us.  Let’s not disappoint them.

It was also great to see the Scottish cabinet visit us recently.  It was also great to see the huge amount of positive coverage it gained for the Borders throughout Scotland notwithstanding the lateness of the invitations.

I am also delighted that our relationship with Scottish Borders Council has improved markedly and in particular I would like to thank Councillor Stuart Bell for our participation on the Council’s Economic Development Group and to Samantha Smith for all her help, support and advice in relation to the Scottish Borders Business Forum.  More on that initiative in a minute.  The Chamber was also involved in the discussions surrounding Scottish Borders Council’s “Scottish Borders Loan Fund”.   This is the kind of initiative the Chamber welcomes.

The Chamber not only has to engage with our politicians but a number of agencies and quangos.  I have often been asked what I think about bodies such as Visit Scotland and Scottish Enterprise.  My view is fairly straightforward.  I do not automatically believe that the Borders needs its own organisation for every sector, agency or quango or that the way we did things in the past was automatically better.  That said, organisations such as these – and this Chamber as well – must act transparently and make a huge effort to meet and talk to their respective stakeholders.  It does no-one, least of all business in the Borders, any favours to see yet another war of words between different groups and factions when it is likely that regular and transparent communication from all sides would solve many of the perceived issues.

As for our relationship with Scottish Chambers I must admit to being in two minds about this.  That though is a matter for my successor and the board.  I would though like to thank Ged Cowans, our vice-Convener, who is also standing down for all the work he has done representing our Chamber at numerous Scottish Chamber events.

On a personal note I am delighted that my idea of bringing the various business organisations together to discuss and debate the bigger issues affecting our businesses here in the Borders has been successful.  The new body is to be called the Scottish Borders Business Forum and its first event deals with a number of local transport issues and is being held on the 14^th of September.  That is a Saturday morning and is at Scottish Borders Council HQ starting at 9am.  It should last about two hours.  The meeting will have speakers from Transport Scotland, Scottish Borders Council, Network Rail and the Road Haulage Association.

I was also pleased that the Chamber agreed to donate the sum of £2,000 to this project.  The only business organisation so far to make such a contribution.  That will be used to make available online a list of all the business organisations in the Borders along with their contact details and also what events they have planned.  This is not rocket science and is long overdue.

As for Directors, a number of new Directors have recently been appointed:  Raymond Kerr, Nick Green and Paul Heyhoe.  Four directors resigned during the year:  Alan Dickson, Maggie Stanfield, Andrew Collier and Chad Dawtry.  Thanks to all of them for all they have done for the Chamber.

The membership of the board is obviously an ongoing process and the Chamber is always looking to hear from local business people who would like to get involved.  One thing I have not had as much success on as I would have hoped is the make-up of the board.  It is still male dominated.  That simply has to change and it is something that the board is looking at again.

The Chamber is also creating an association of former Directors of the Chamber.  The advantages to the Chamber of making use of the knowledge and experience of our former Directors are obvious.

A few final thoughts.  There are a huge number of great things going on here in the Borders.

Eyemouth Harbour can now receive cruise ships, our first crematorium is now in operation, the Borders Book Festival, the Border Union Show, the new 3G sports arena, plans are now in place for a purpose-built mountain bike chairlift at Innerleithen, our common ridings and festivals, our “Sevens” tournaments, our first palliative care unit and a site has been found for the Bill McLaren museum.   Let’s also not forget the newly refurbished Abbotsford House.  I am sure everyone here today could add many others to this list.

One reason I mentioned these things again concerns a letter I had published in the Southern Reporter a few months ago which received a great deal of comment.  I must admit I was getting sick and tired of the negativity surrounding the Borders that seem to dominate the letters pages of our local papers.  I simply wanted to point out some of the great things happening here in the Borders.

I also mentioned the negativity towards the return of the railway, which has been disgraceful, and I hope at last is at an end.  It gave a great deal of ammunition to those in other parts of Scotland who wanted the money spent on their patch.  We were accused of being divided and insular.  With this in mind, I would again ask those local politicians who even now seem reluctant to support the project to put the Borders first and get behind the campaign to take the railway to Melrose, Hawick and hopefully Carlisle.  This is a fantastic opportunity for the business community in the Borders and something the Chamber fully supports.

One of the reasons we lost our railway is that we were divided.  Let’s never let that happen again.  Hopefully the Scottish Borders Business Forum will give us the single business voice that we have not had up till now.

It is though not just about the railway.  The quality of our communication infrastructure is absolutely vital if business in the Borders is to remain competitive let alone expand.   The main roads that cross the Borders are simply not good enough.  This is a matter mainly for the Scottish Government and BEAR Scotland but also for Scottish Borders Council.  Regarding BEAR Scotland.  The amount of time it took them to resolve the landslip problem on the A68 between Earlston and Lauder was simply not good enough.  When we contacted them about this it was difficult to even persuade them to put signs up saying what the problem was.  When we contacted Scottish Borders Council to try and put pressure on BEAR Scotland about this their response was pretty much, “nothing to do with us”.  If our politicians and organisations such as BEAR Scotland do not understand the importance of roads such as the A68 to business here in the Borders this will make it much more difficult to retain or even entice more businesses to the Borders.  It is that simple.

So what do we want?  Of course we want to see the A1 dualled all the way to the Border.  We know that the other main roads into and out of the Borders are not going to be dualled.  That is why we are arguing for two or three more passing lanes on the A7 and A68 as a matter of urgency.  The Chamber will also be arguing very strongly for much improved broadband and mobile phone services for the Borders.

A few final words.

I am pleased to report that the Chamber remains in very good hands.  That brings me nicely to Jack Clark and Bruce Simpson.  Jack Clark is my successor as Convener and Bruce Simpson succeeds Ged Cowans as vice-Convener.  Both Jack and Bruce have done a power of work for the Chamber over the last few years. We will hear from both of them in a few minutes.

I would like to thank my fellow directors, both past and present, for all their support over the last two years.  Our board of directors are unpaid unless they also take on one of our paid roles and rarely even claim expenses.  A great deal of the work they do goes unreported.

Lastly, and by no means least, I would like to thank our members for their continued support of the Chamber.

I will finish where I began.  “As the leading business membership organisation in the Scottish Borders the Scottish Borders Chamber of Commerce is committed to representing the interests of the business community in the Scottish Borders.”

It has been an absolute pleasure and honour to represent the Scottish Borders Chamber of Commerce for the last two years.  Thank you.

“There is currently a 12 week waiting period before your PoA can be processed and returned to you. This week we will be working on PoAs received on and around 30th May 2013.

If there is a genuine urgency, we will expedite the registration of a PoA ‘on cause shown’. We ask that people respect this service and only use it in cases of true urgency to avoid defeating its purpose.”

More on this can be found here.

Outer house case concerning a planning application made by Archid in October 2009 to convert an office on Thomson Street in Dundee into a residential building.

Background
Archid received a notice dated 1 December 2009 advising that Dundee City Council had granted planning permission for their development on 26 November 2009. The notice also contained the reasons for the decision and, although the notice purported to grant the permission, the reasons appeared to be justifications for a refusal of permission. Archid then applied for and were granted (on 18 March 2010) a building warrant in connection with the works.

However, on 11 May 2011, Archid received a second notice (also dated 1 December 2009) from the Council advising that planning permission for the works had in fact been refused on 26 November 2009 and that an incorrect decision notice had been issued[1]. The covering letter also stated that the Council’s Enforcement Officer had visited the site, asked that all works cease and that the site be restored to its original condition.

Arguments
Archid sought judicial review. They argued that, having issued their original decision notice, the Council could not thereafter just ignore it and issue a new decision letter refusing the permission. Until the planning permission was revoked or modified in accordance with the statutory procedure[2] (which provides protection for the applicant in respect of work already carried out and provides a separate review process[3]) or reduced by an order of the court, the permission stood.

The Council argued that the person within the planning department who sent out the first notice had had no authority to do so. His authority extended only to giving notice of decisions taken to grant or refuse planning permission. The decision taken by the Council was to refuse permission. In those circumstances he had no authority to give notice that permission had been granted. It followed, they contended, that the first notice was simply a nullity and could be ignored.

Decision
Lord Glennie took the view that the presumption expressed by the maxim omnia praesumuntur rite esse acta (“all things are presumed to have been done duly and in the usual manner”) was applicable with the consequence that the first notice was presumed to be validly made and to have legal effect unless and until reduced following a court process.

 “An interested member of the public should be able to rely upon a notice issued by a public authority as having been issued correctly and with the appropriate authority; that is all the more pertinent in the case of a document granting planning permission, since the grant of planning permission runs with the land, and may be relied on by persons who were not party to the original application or privy to any correspondence or telephone communications passing between the applicant and the authority.”

The validity of the second notice depended on the status of the first notice (at the time the second was issued). The first notice being valid, the Council could not[4] then correct it as the Council was functus (i.e. having discharged its duty, the Council could not then review its own decision.).  Also it could not simply ignore it and make another order, because then there would be two conflicting orders in respect of the one matter. Lord Glennie therefore concluded that the first notice was valid and that the second notice was ultra vires (i.e. outwith the Council’s powers) and had to be reduced.[5]

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.