The Supreme Court has rejected the appeal by campaigners against the Aberdeen bypass.
The decision is available here.
The press summary is available here.
A BBC report on the decision can be found here.
Comments close on the Scottish Law Commission’s discussion paper on the right to liberty of adults with incapacity in residential facilities on 31 October 2012.
This is from the accompanying press release:
“The background to the project is a decision of the European Court of Human Rights in a case involving a person with autism, who had been admitted to Bournewood – a psychiatric hospital in England. The care he was receiving there had some restrictive features, and requests by his carers for him to return home were refused. The Court’s decision was that there had been a breach of his right to liberty, as protected by Article 5 of the Convention. That result caused a change in the law of England and Wales. Admissions to long-stay hospitals for people with autism or other neurological conditions or disabilities who lacked decision-making capacity could no longer be regarded as voluntary and informal. A new system was introduced to authorise these admissions. The changes also affected some admissions to care homes.
The Commission is therefore examining the position in Scots law concerning the right to liberty of adults with incapacity in residential facilities.”
The consultation and other papers can be found here.
The Scottish Court of Session has ruled that the one-year time limit for s25 financial provision claims under the Family Law (Scotland) Act 2006 is to be rigidly applied.
Overruling a sheriff’s decision to allow a time-barred claim in Simpson v Downie, the Court of Session said a cohabitant has no independent substantive right to financial provision.
The full case report from the Scottish Courts Service can be found here.
An article from Scottish Legal News can also be found here.
Outer 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 noted that national policy had evolved after the planning application had been made and that a new policy was launched (without consultation as a “revised annex” to the Scotland’s Zero Waste Plan, 2010) the day before the inquiry. However, no issue was raised about the lawfulness of the policy. The matter for the court was whether the reporters’ understanding and application of the policy was sound and whether they had departed from it. In refusing the Council’s appeal Lord Stewart said:
“The meaning assigned to the new policy by the reporters as I understand it is that the need assessment area is, or at least that one of the relevant need assessment areas is, Scotland as a whole. The policy is quite capable of bearing this meaning. It was entirely reasonable for the reporters to treat national need as a material consideration and, in this case, as the determining consideration subject to any site-specific objections.”
The full judgement is available from Scottish Courts here.
(See appeal to the Inner House here.)
All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.
Sheriff Court case in which Northern Rock sought declarator that Mr Fowlie was in default and that it was entitled to sell[1] a property subject to a standard security without following the procedure set out in s24(1B) of the Conveyancing and Feudal Reform (Scotland) Act 1970 as the property was unoccupied.
In granting the declarator,Sheriff Mann agreed with the decision of Sheriff Braid in Accord Mortgages Limited v Edwards in which it was noted that s24 applies only where the subjects are being used for residential purposes and found that, where the subjects are unoccupied, they cannot be said to be being used for residential purposes.
In this case, Northern Rock had lodged both a Field Agent Report and Sheriff Officer Report which concluded that the property in question was unoccupied. Sheriff Mann observed that, as s24 requires the service of notice on the debtor of their right to make representations to the court, if the notice were not served, then a debtor may choose not to oppose an action in ignorance of that right. As a result, the Sheriff concluded that creditors should not be allowed to raise proceedings by way of declarator by ordinary cause unless they are in a position to demonstrate that, prima facie, the subjects are unoccupied. Here, the Field Agent Report and Sheriff Officer Report had been an appropriate way for the creditor to show this.
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.
[1] And exercise its other powers under the Conveyancing and Feudal Reform (Scotland) Act 1970.
Let’s start with the independence debate. I would normally refer to this as the “fiscal powers” debate but there seems little point as that ship appears to have sailed. Some things are becoming clearer. There is not going to be a second question. The likelihood of serious additional fiscal powers being devolved to the Scottish Parliament if Scotland votes ‘No’ also now seems increasingly unlikely.
It is not difficult to imagine the appetite for even listening to arguments for additional fiscal powers at Westminster in that event. That is where the Devo Plus campaign has got it wrong. And I say this as one of the authors of the Reform Scotland Fiscal Powers papers on which their proposal is based. Devo Plus are arguing for a ‘No’ vote and also that there should not be a second question. Do they really think Westminster will seriously consider devolving further powers to the Scottish Parliament if Scotland votes ‘No’? An article by Jeremy Purvis who leads the Devo Plus campaign can be found here. On a personal note it is disappointing to see that Reform Scotland have now taken a stance on Scotland’s constitutional question by its support for Devo Plus.
The fact that only the Liberal Democrats are going to have a further devolution proposal by the time the referendum takes place reinforces this argument.
So if there is not to be a second question, what do those who have supported devo max previously do? The impact and importance of Jim McColl’s announcement in favour of independence should not be under estimated. A BBC news website report on this can be found here.
Now to taxing the wealthy. Just now politicians seem to talk of little else. Let’s ignore for now what actually constitutes wealth.
Let’s start with an article by George Kerevan on the Scotsman. Kerevan argues against taxing the wealthy, believing that it is arbitrary, complicated to administer, and does not raise enough money relative to the trouble it takes to collect it. His article can be found here.
Nick Clegg wants to ensure that the rich “pay their fair share”. He has vowed to block further welfare cuts until a mansion tax is agreed with his Tory coalition partners. Vince Cable has also spoken out against tax havens and non-domiciles. Then there is Danny Alexander. He has promised tax investigations for all those who own assets worth more than £1 million. The cynic in me says: I have heard a lot of this before and not just on tax reform. What about the banks. Has anything of substance actually been done?
Then there is the evolving love in between Ed Balls and Nick Clegg. Ed Balls told the Independent newspaper that a future Labour UK Government could impose an annual levy on expensive properties, unlike Nick Clegg though, he favours a permanent rather than temporary wealth tax. The article in the Independent can be found here. This does seem more like mischief making than serious policy making given how long the last UK Labour Government were in power.
One reason for my cynicism is a claim made by the SNP this week. The claim is that there are fewer, not more, tax inspectors. I have blogged before on how HMRC’s budget has been reduced and of the large number of HMRC redundancies. If we are serious about tackling tax evasion then you need a properly resourced tax collection agency. Transparency would not go a miss either. How about publishing tax returns? The SNP press release on this can be found here.
So what can be done? HMRC’s High Net Worth Unit has brought in £500 million in extra tax from the UK’s 5,000 wealthiest people since it launched three years ago. The amount collected is well over the original target of £100 million a year. A press release from HMRC on this can be found here. And of course this was achieved in a time where HMRC’s budget has been cut.
Finally on this issue, an excellent article by Iain MacWhirter in the Herald. MacWhirter points to the relative insignificance of the cost of the so called “free services” as compared with the salaries and pensions of the higher-earning public sector workers. The article in the Herald can be found here.
These services are of course not “free”. They are paid for by taxation. Taxation is simply a series of political choices.
The introduction of a 15% rate of stamp duty land tax on corporate buyers in this year’s UK Budget, it is claimed, has had a dramatic impact on the high-value London property market. The article from the online STEP journal can be found here here. I must admit to struggling to see why this is a bad thing.
About 60% of all taxpayers’ complaints against HMRC are upheld on appeal, according to figures from Pinsent Masons. Some 58,110 complaints were made last year, of which more than 33,000 were accepted either by an internal HMRC review or by the Adjudicator’s Office. A report on this can be found here.
Barclays Bank is to cut back on its UK tax planning unit, after a dispute with the tax authorities over ‘aggressive’ schemes tarnished its public image. A report on this can be found here.
Now to matters slightly further afield.
Firstly to America and the never ending saga of Mitt Romney’s tax affairs. Romney has at last published his 2011 tax return. It turns out Romney and his wife paid $1.936 million in taxes on gross income of $13.7 million. That is a tax rate of 14.1%. The article from the online STEP journal can be found here. I suspect that this is not the end of this matter.
Francois Hollande has revealed details of his 75% top rate of income tax for France’s wealthiest citizens. Newspaper reports suggest there are likely to be concessions for married couples, performers and sports stars. Meanwhile the richest man in France, Bernard Arnault, has applied for Belgian nationality to escape the tax. An article on this from the Guardian can be found here. Again, I suspect that this is an issue that is going to run and run.
A Spanish newspaper has reported that the country is about to double capital gains tax on short term gains to 52%. This gives a sense of the level of problems now faced by Spain. An article on this can be found here.
Have a good weekend.
Outer House case considering a motion for recall of inhibitions served on Cordelt Limited and Mako Property Limited by Playfair Limited. Mako and Cordelt argued that the inhibitions prevented them showing clear searches to purchasers in implement of contracts to sell properties in Edinburgh.
An important issue for the court was whether s160 of the Bankruptcy and Diligence (Scotland) Act 2007 changed the law regarding the effect of an inhibition on a pre-existing contract to convey property. Under the prior law it was clear that an inhibition did not prevent the transfer of property in implementation of a contract that pre-dated the inhibition. After detailed consideration of the 2007 Act and Scottish Law Commission’s Report on Diligence, Lord Hodge found that the law had not changed in this respect. He also noted that if (and he doubted that it had) advice from Registers of Scotland had indicated otherwise then he would respectfully disagree with that advice. Although s160 defines a breach of the inhibition as occurring when a debtor delivers a deed conveying property over which the inhibition has effect, it does not strike at a deed in implement of a pre-existing obligation.
“I conclude that an inhibition does not strike at a transaction which the inhibited person is bound to carry out as a result of a pre-inhibition obligation. The reforms of the 2007 Act did not create a statutory code which excluded that common law characteristic of the diligence. Had the 2007 Act had that effect it would have created a diligence which forced the inhibited person either to breach the inhibition or break his contract. That would not have been good law reform”
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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HMRC has won what might turn out to be a very significant victory in a case involving Stamp Duty Land Tax planning and in particular sub-sale relief.
A report on this from STEP on-line Journal can be found here.
