Sheriff Court case considering a noticed served on Mr and Mrs Sinclair by Fife Council after a retaining wall (which was over 100 years old) owned by Mr and Mrs Sinclair collapsed and damaged a section of Dysart High Street (which was supported by the wall).  The notice was served under section 91(2) of the Roads (Scotland) Act 1984 and required Mr and Mrs Sinclair to (1) replace the collapsed wall with a new wall and foundation; and (2) reinstate the damaged road. (A conservative estimate of the cost reinstatement of the wall was said to be £200k.)

The Sinclairs challenged the notice under s91(9) of the 1984 Act which allows a person in receipt of a notice to refer the matter by summary application to the sheriff.

In the sheriff court it was found that, whilst the Council was entitled to serve a notice in respect of repairs to the wall, it was not entitled to do so in respect of the reinstatement of the road. The notice could be served on Mr and Mrs Sinclair as owners of the wall because the wall was in such condition that it was a danger to the road or road users. However, the same was not the case with the road. They did not own the road or the solum and were not responsible for its maintenance. Any works to the road would require the Council’s consent in terms of s56 of the 1984 Act and that could not be given in advance in the notice.

The quashing of the part of the notice referring to the road did not invalidate the remainder of the notice which referred to the wall. But, although the part of the notice referring the wall was valid, the court found that its requirements were unreasonable. In coming to this conclusion the court took account of the following:

1. The use of the road and the benefit the Council derived from the wall: the road was a busy thoroughfare through Dysart used by, amongst other things, buses, refuse lorries and other public utility vehicles. The support provided by the wall was central to the safe keeping of the road and, as a result, the council kept a register of retaining walls and carried out regular inspections. Although the inspections identified a bulge, more detailed tests to identify the danger the bulge represented were not carried out. It was also known by the Council’s engineers that the wall’s random rubble construction was not suitable for its purpose as a retaining wall and yet the council did not further examine the wall to assess its fitness for purpose.
2. The causes of the collapse: a number of factors were put forward as reasons for the collapse but it was agreed that backfill[1], which was owned entirely by the Council and over which the Sinclairs had no control, was an important factor in the collapse. The road had also been disturbed by the Council and utility companies.
3. Although it was of significance that the Council had in no way contributed to the collapse of the wall by act or omission, if the inspection regime had been more rigorous failings in the wall would have been identified and action taken.
4. The council required the replacement wall to meet modern design standards which would result in a significant improvement to their roads infrastructure at no cost to them.

The Council had the discretion to pay for or contribute to the costs of the remedial work but chose not to. Given the history of events leading to the collapse, the court found that decision to be unreasonable and, as a result, quashed the whole notice.

 The full judgement is available from Scottish Courts here.

Supreme Court decision considering an appeal from the Inner House in respect of a challenge to the schemes and orders made by the Scottish Ministers (under the Roads (Scotland) Act 1984) to allow construction of an Aberdeen bypass.

The bypass, as initially promoted by the Ministers, had its origins in a regional transport strategy published in March 2003 which, in addition to the bypass, had also considered various other proposals for reducing congestion in Aberdeen.  The Ministers decided to undertake the bypass. However, in December 2004, following a campaign against the routing of the bypass via Murtle of Camphill, previously discarded options were reconsidered and became part of a public consultation. Prior to making a decision the Minister for Transport, commissioned a report on an option which was a hybrid of two of these previous options.  That hybrid option (known as the Fastlink) which linked Stonehaven to the bypass was adopted (in December 2005) on the grounds it would also reduce congestion between Stonehaven and Aberdeen on the A90. The ministers then published Environmental Impact Assessments (EIAs) on the basis that the scheme fell within the scope of the Environmental Assessment Directive.

Following objections from Mr Walton[1] and others, a public inquiry was held into environmental and technical issues concerning the bypass. However it did not consider the more fundamental question of whether the bypass should be built at all.  Litigation then followed through the courts.

In the Supreme Court, Mr Walton’s primary contention was that the Fastlink was adopted without the public consultation required under the Strategic Environmental Assessment Directive[2].  Mr Walton also argued that common law principles of fairness required that the public inquiry should have considered the (economic, social or strategic) justifications for building the Fastlink.  Although Mr Walton only sought to quash the schemes and orders in so far as they concern the Fastlink, the Ministers maintained that if the schemes and orders were to be quashed to any extent, the scheme for the bypass would fall as a whole.

Requirement for a Strategic Environmental Assessment
In coming to its conclusion, the court took account of the differences between EIAs and Strategic Environmental Assessments (SEAs). It was noted that the EIA Directive is concerned with the assessment of the effects of “projects” on the environment. The SEA Directive, which was adopted 16 years later, is concerned with the environmental assessment of “plans and programmes” (which set the framework of future development consent of “projects”) and is intended to give consideration to environmental considerations at an earlier stage in the process[3].

The Supreme Court considered that, whereas the regional transport strategy (in March 2003) was a “plan or programme” in terms of the SEA Directive, the Fastlink was neither a “plan or programme” nor a “modification”[4] to a “plan or a programme” and did not trigger the consultation requirements under the SEA Directive.  It was instead a modification to a “project” and thus subject to the EIA Directive rather than the SEA Directive.

Compliance with common law principles of fairness
With regard to the common law principles of fairness concerning the holding of the public inquiry, in terms of the Roads (Scotland) Act 1984, the Ministers are under a duty to hold an inquiry if an objection is made to an order or scheme by any person who requires notification of the scheme (in terms of the 1984 Act) or any other person appearing to them to be affected.

As Mr Walton did not require to be notified of the scheme and nothing before the court indicated that he was regarded as a person affected, there was no suggestion that the Ministers were statutorily obliged to hold an inquiry into his objections. There was also no suggestion that he had any legitimate expectation that the remit of the inquiry would encompass the (economic, policy or strategic justifications) for building the Fastlink. No material before the court suggested that the Ministers were bound as a matter of fairness to include the justifications for the building of the Fastlink within the remit of the inquiry.

Whether remedies should have been available to Mr Walton
In the Inner House it had been observed that:

1.  if Mr Walton’s contentions had been accepted, the court would have exercised its discretion (under to the 1984 Act) to decline to grant him a remedy, the court noting that it was not contended that the schemes and orders would substantially prejudice his interests or affect his property;
2. Mr Walton was not a “person aggrieved”[5] in terms of the 1984 Act; and
3. Mr Walton would not have had standing even if the test were the same as would apply to a judicial review at common law.

Whilst reserving its opinion on the correctness of Inner House’s approach, the Supreme Court noted that, in terms of the Scotland Act 1998, the Scottish Ministers do not have the power to make subordinate legislation or exercise a function which is incompatible with EU law. It would therefore be necessary to consider the terms of the 1984 Act and the exercising of discretion under it in that context.

The Supreme Court also found that Mr Walton was a “person aggrieved” in terms of the 1984 Act. In coming to this conclusion, it noted his representations to the Ministers and his role in the local inquiry the fact that he lived in the vicinity of the bypass (if not the Fastlink) which would be busier as a result of the Fastlink. Also, his role in local environmental organisations and Road Sense helped to demonstrate that he was more than a “mere busybody interfering in things which did not concern him”.  As a consequence, the Supreme Court found him to have a genuine concern in what he argued was an illegality in the consent for a project which would have a significant impact on the environment.  In Lord Reed’s words he was “indubitably a person aggrieved within the meaning of the legislation”.

As regards the common law test, the Supreme Court found that the same factors which brought him within the definition of a “person aggrieved” would apply and he would have had standing to make an application for judicial review. Lord Reed also said:

 “Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority’s violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it.”

 The full text of the judgement is available here.

Sheriff Court case relating to the blockage of a sewer on Queen Anne Street in Dunfermline which Scottish Water were responsible for maintaining. A monobloc thought to be causing the blockage was discovered by Scottish Water in February 2009 after excavating and opening the pipe.  Scottish Water claimed damages from Dunne who had carried out reconstruction and resurfacing works for Fife Council in November 2007. The works had involved replacing the surface of the road and pavement with monobloc.

At first instance the sheriff found that on the balance of probabilities the blockage had been caused by the monobloc used by Dunne to resurface the road but was unable to make a finding as to how the monobloc had found its way into the sewer. As the Scottish Water had no direct evidence as to what had happened in 2007 and were not able to prove that there was no other way the block could have entered the sewer, the sheriff refused Scottish Water’s action for damages.

However, the sheriff principal allowed an appeal, finding that Scottish Water’s evidence was sufficient to raise a prima facie inference of negligence which had not been answered by Dunne. As such, damages of £12,585 were awarded to Scottish Water.

The full judgement is available from Scottish Water here.

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