APPEAL UNDER THE ACQUISITION OF LAND (AUTHORISATION PROCEDURE)(SCOTLAND) ACT 1948 AND THE LAND COMPENSATION (SCOTLAND) ACT 1973 BY JOHN MOWBRAY AGAINST THE SCOTTISH MINISTERS AND FIFE COUNCIL
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 100
XA136/13
Lord Eassie
Lord Menzies
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD MENZIES
in the Appeal
under the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 and the Land Compensation (Scotland) Act 1973
by
JOHN MOWBRAY
Appellant;
against
(FIRST) THE SCOTTISH MINISTERS AND
(SECOND) FIFE COUNCIL
Respondents:
Act: Party
Alt: M Ross; Scottish Government Legal Directorate, (First Respondent)
Alt: D Thomson; HBJ Gateley, (Second Respondent)
25 November 2014
[1] These proceedings, are concerned with a house at 222 High Street, Leslie, Fife. It is an early 19th century end terrace house of two stories in pebble-dashed stone under a slate roof with fine detailing to skews and window surrounds. It is a category C listed building and lies within the Leslie Conservation Area. It is derelict and has been unoccupied for a lengthy period. Some windows are boarded up, some broken and rhones and chimney head are in a poor state of repair. The walls appear to show rising damp. It has a reasonable sized garden which is partially filled with rubbish and waste material, including a scrap car. The house is potentially liable to rot and other decay, with the possibility of this crossing the gable to the adjoining property to the east. The state of the house detracts from the street scene within the conservation area, and is the decay of an important listed building within the locality. The state of the garden ground is likely to attract infestation and its visual appearance detracts very seriously from the residential amenity of neighbouring properties, as well as the general scene when seen from the street.
[2] The appellant acquired an interest in the property in terms of missives in 1981. It appears that the seller of the property had in 1969 granted an ex facie absolute disposition in security of a loan granted by Fife County Council. For reasons which are not immediately apparent, a discharge of that ex facie absolute disposition in security was not recorded until July 1995. It does not appear that the appellant has ever recorded title to the property.
[3] It appears that no steps have been taken to maintain the house or its associated garden ground since 1981. It has become increasingly derelict and unsightly. On 13 November 2006, Fife Council made the Fife Council (222 High Street, Leslie) Compulsory Purchase Order 2006, under the powers conferred by the Housing (Scotland) Act 1987 and the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947.
[4] There were two statutory objections to the Order which were not withdrawn following negotiations; one of these objections was made by the appellant. On 16 November 2011, the Scottish Ministers appointed a reporter to carry out an inquiry into these objections. An inquiry was held over five days between February and December 2012 and the reporter provided his report on 4 March 2013.
[5] Having set out the cases for Fife Council and for the appellant and his wife, the reporter set out his findings and related conclusions at paragraphs 25-38 of his report. He observed (at paragraph 33) that the current state of the property
“shows a clear disregard for the proper upkeep of the building, as well as for the situation having to be endured by neighbours. In these circumstances I can fully understand the Council using the Order to resolve the problem.”
At paragraph 34 he found that:
“Mr and Mrs Mowbray have shown no real intent to do anything to maintain the property and make it habitable. The reasons for this are unclear. It is against this background that I find Mr Mowbray’s stated intention to resolve the matter lacking in conviction.”
At paragraph 36 he found the Council correct to pursue the Order as the only practicable way forward to ensure the restoration and occupation of the property. His recommendation was that the Order be confirmed. In September 2013, the Scottish Ministers confirmed, with modifications, the Fife Council (222 High Street, Leslie) Compulsory Purchase Order 2006, which became operative on 2 October 2013. The appellant has lodged this statutory appeal against the decisions of the reporter and the Scottish Ministers.
[6] Although the appellant was legally represented at the inquiry proceedings before the reporter, he has acted on his own behalf throughout these appeal proceedings. He lodged grounds of appeal in November 2013. These grounds of appeal were difficult to understand and of doubtful relevance. They amounted to little more than expressions of dissatisfaction at the conclusions which the reporter reached on the evidence led before him, dissatisfaction with the inquiry procedure, and dissatisfaction with the reporter’s assessment of the appellant’s evidence, together with an inspecific innuendo of a “hidden agenda on the part of the Fife Council”. The grounds of appeal did not contain any statement or argument that the reporter had erred in law, or taken account of irrelevant considerations, or failed to take account of relevant considerations, or had reached a perverse decision which no reasonable reporter could have reached. Nothing in the grounds of appeal set out a basis on which it could be said that the reporter’s reasoning and conclusions were vitiated for any reason, nor why the reporter’s recommendation that the Order be confirmed or the Scottish Ministers’ subsequent decision to confirm with modifications the Order should be set aside.
[7] When the appeal came before the court at a procedural hearing on 29 April 2014, the court allowed the appellant until 27 May 2014 to amend his grounds of appeal and note of argument. On 30 May 2014, the appellant having made no such amendment, the court allowed him a further period until 13 June 2014 in which to amend his grounds of appeal and note of argument. The appellant did not avail himself of these opportunities. No amendment of the grounds of appeal or note of argument was made before the summar roll hearing on 28 October 2014.
[8] At the commencement of the summar roll hearing on 28 October 2014, the appellant sought leave of the court to amend his grounds of appeal by adding three further grounds. These were not presented in written form, but set out by the appellant orally. He had not intimated to the court, nor to either of the respondents, that he intended to do this. No motion seeking leave to amend had been enrolled, and neither respondent was aware that the appellant wished to amend. Each respondent had lodged answers to the grounds of appeal, and notes of argument, which were prepared on the basis of the existing grounds of appeal and note of argument for the appellant. Counsel for each of the respondents opposed the appellant’s attempt to make oral amendment of the grounds of appeal at the bar.
[9] We refused to allow the appellant to amend his grounds of appeal. He had been given ample opportunity to amend his grounds of appeal and note of argument to render them relevant, but in the six month period since the procedural hearing, he had not attempted to do so. Even on the morning of the summar roll hearing, he had not set down in writing what it was he sought to amend. No intimation had been made to the court or to the respondents that he intended to amend. We considered that the attempt to amend on the morning of the summar roll hearing came far too late and did not give fair notice to the respondents.
[10] Thereafter the appellant presented submissions in support of the various complaints contained in the grounds of appeal and elaborated in his note of argument. He submitted that the way in which the reporter conducted the inquiry amounted to a contravention of the appellant’s right to a fair hearing in terms of the Human Rights Act, and that the reporter should have taken account of a newspaper article and made reference to this in his report; he argued that this court should have regard to the content of this article. He submitted that it was improper for the reporter to make an unaccompanied site visit, without telling any of the parties that he intended to do so. He argued that he was never made aware that the property was a listed building, and this fact cast suspicion on both firms of solicitors involved in the missives in 1981. He took issue with several of the statements made in the report, and he elaborated on the written grounds of appeal.
[11] In reply, counsel for the Scottish Ministers relied on her answers and note of arguments and sought to make no further submissions. Counsel for Fife Council withdrew his objection to the competency of the appeal; apart from this he relied on his answers and note of argument and made no further submissions.
[12] We found the appellant’s oral presentation as difficult to follow as his grounds of appeal and note of argument. We are not persuaded that there is any force in any of his complaints about the reporter’s recommendation or the Scottish Ministers decision. A reporter is not obliged to set out in his report or decision letter every piece of material presented before him, at inquiry, nor is he required to deal with every argument or submission presented to him however irrelevant or peripheral. What he is required to do is to set out what he considers to be the determining issues, to give his conclusions on each of those issues, and to set out sufficiently intelligible reasons for his reaching those conclusions to enable the well informed reader to understand why he made the recommendation which he did.
[13] In the present case we consider that the reporter did everything required of him. He focused first on the Council’s primary reason for promoting the order, namely the state of the property. He found it to be in a state of disrepair, having an adverse impact on the street scene in general, and seriously affecting the residential amenity of neighbouring properties. We consider that he was correct to focus on the state of the property, and that his finding cannot properly be challenged. The appellant appears to have concluded missives for the property in 1981. Since that date it does not appear that any effective steps have been taken to maintain the property. The house has become increasingly derelict, it is partially open to the elements and potentially liable to rot and other decay. The garden ground is largely filled with waste building and other material, in addition to a scrap car. The reporter made a finding that Mr and Mrs Mowbray have shown no real intent to do anything to maintain the property and make it habitable, and that the appellant’s stated intention to resolve the matter lacked conviction. Nothing before us suggests that the reporter was not entitled to make such findings.
[14] It does not appear that the appellant was able to explain to the reporter why it has taken some 18 years from 1995 for Mr and Mrs Mowbray to obtain a proper title to the property; the appellant gave no explanation to the court about this, nor why no, or very little, action has been taken since 1995 to put the property in good physical repair and render it habitable.
[15] The appellant appeared at times to be submitting that the local authority itself was the infeft proprietor of the property and ought to have maintained it in proper repair. There is no substance in this argument; we are satisfied that the local authority held an ex facie absolute disposition in security for a loan which it granted to the previous owner of the property, and no more than that. Similarly, we consider that there is no force in the criticisms made of the reporter regarding the newspaper article (which had no evidential value whatsoever). The complaint about the reporter’s unaccompanied site visit is similarly without any merit; it is important to remember that there are distinctions between, for example, judicial proceedings in court, lands valuation disputes, planning proceedings, proceedings for authorisation of the acquisition of land, and many other different procedures. What is acceptable in one of these procedures may not be acceptable in another – one size does not necessarily fit all. In proceedings such as these, the fact that the reporter makes an unaccompanied site visit is not a matter which we consider can properly be the subject of criticism or complaint.
[16] In conclusion, we consider that the appellant’s grounds of appeal disclose nothing more than a dissatisfaction with the reporter’s conclusion, and a desire for a complete re-hearing before this court. We do not consider that there is any merit in this appeal, and we refuse it.