SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY
A3146/06
| | JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART |
| in the cause |
| ROBERT DUFF AND ANN DUFF |
| Pursuers and Respondents |
| against |
| PETER KIEL AND JACQUELINE KIEL |
| | Defenders and Appellants |
Act: Ms Yvonne Morgan, Messrs Ferguson Dewar
Alt: A M Cockburn Esq, Messrs Maxwell MacLaurin
HAMILTON: 29 November 2006
The Sheriff Principal, having resumed consideration of the cause, sustains the appeal and recalls the grant of interim interdict made on 13 October 2006. Quoad ultra dismisses the cause and finds the pursuers and respondents liable to the defenders and appellants in expenses of the cause and of the appeal, allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of counsel.
NOTE:
Background to the appeal
1. In this case the respondents sought interdict against the appellants from (first) demolishing the existing dwellinghouse garage and any outbuildings presently situated at and forming 8 Graham Avenue, The Village, East Kilbride and (second) taking any step by way of excavation or construction work with a view to implementing the proposed erection on the site at 8 Graham Street, The Village, East Kilbride of a flatted development in respect of which planning permission was granted by South Lanarkshire Council on Tuesday 10 October 2006.
2. The respondents are spouses and next door neighbours to the appellants. Originally the appellants made an application to South Lanarkshire Council, the planning authority for inter alia East Kilbride, for planning permission to demolish the existing two storey building, garage and outhouses on the ground at 8 Graham Street, The Village, East Kilbride and to erect a development of flatted dwellinghouses in their place. That application was refused by South Lanarkshire Council on 21 June 2006.
3. On or about 5 July 2006 the appellants made a further application to South Lanarkshire Council for permission for the erection of a flatted development on the site at 8 Graham Avenue. The respondents aver that the plans for the development were not significantly different from those submitted with the original application. The frontage onto Graham Avenue was increased in width by 0.6 metres, being approximately 2% of the original proposal. The ridge line on the proposed development as represented on the plans was at an increased height. It is averred that the Executive Director of South Lanarkshire Council incorrectly advised the Council members considering the application that the new development was 1.7 metres narrower in width in terms of frontage onto Graham Avenue. 1.7 metres approximates to 5% of the original frontage proposed. The Executive Director also reported that the ridge line was 0.5 metres lower. That information was incorrect. It was averred that the proposed development as represented within the plans attached to the application lodged in July 2006 remained significantly the same as the earlier proposal. Notwithstanding objections lodged on behalf of the respondents and sixteen other objectors including the local Community Council, South Lanarkshire Council granted the application on 10 October 2006.
4. It is the respondents case that the decision was unreasonable insofar as it was based on erroneous information and additionally having regard to the terms on which the first application for planning permission on the site was refused, and the lack of material variation between the two planning applications, the grant of planning permission was so unreasonable that no reasonable authority could have come to the decision to grant the application. The respondents on that basis intend to institute proceedings for judicial review in the Court of Session of the said decision of South Lanarkshire Council to grant planning permission. The respondents aver that they have reasonable cause to believe that the appellants, unless interdicted from so doing, will proceed to utilise the permissions granted to them and to demolish the existing housing and otherwise to take steps to prepare the ground for construction work and to proceed with construction work in implementation of said decision. The respondents crave that interim interdict should be granted pending reduction of the decision of the planning authority by way of judicial review in the Court of Session.
5. The Sheriff originally granted interim interdict on 10 October 2006 until 13 October 2006 on the basis of the information contained in the initial writ. A hearing was fixed for 13 October 2006. On that date a second Sheriff, after hearing parties, refused the motion of the respondents to recall the interim interdict granted on 10 October 2006 and of new granted interim interdict in the same terms. Against that decision the respondents now appeal.
Submissions for the pursuers and respondents
6. There were four grounds of appeal intimated on behalf of the appellants.
| (a) The Sheriff Court does not have jurisdiction and the interlocutors of 10 October 2006 and 13 October 2006 are incompetent. (b) There is no wrong or apprehended wrong. There is no unlawful or apprehended unlawful act. The appellants are lawfully entitled to proceed in terms of the planning permission granted on 10 October 2006. There is no prima facie case. (c) The respondents have no right, title or interest in the present proceedings. There is no legal relationship between the parties. There are no rights the respondents hold that have or will be denied or infringed by the appellants. (d) The Sheriffs misdirected themselves on the balance of convenience. The submissions for the appellants under each head were as follows: |
| (a) The Sheriff Court does not have jurisdiction |
7. It was submitted that this action should have been raised in the Court of Session and any interim order should form part of a petition for judicial review. I was referred to the Court of Session Rules chapter 58 which deals with applications for judicial review. Para 58.1 made it clear that the supervisory jurisdiction of judicial review was exclusively in the Court of Session. The Court of Session alone had authority to deal with the review of a planning decision made by the South Lanarkshire Council. I was also referred to Rule 58.4 which provides:
| "The court, in exercising its supervisory jurisdiction on a petition for judicial review may - ... (b) make such order in relation to the decision in question as it thinks fit, whether or not such order was sought in the petition, being an order which could be made if sought in any action or petition, including an order for reduction, declarator, suspension, interdict, implement, restitution, payment (whether of damages or otherwise) and any interim order." It was submitted that this made it clear that not only the substantive review decision was a matter for the Court of Session, but also any question of suspension or interdict which arose in relation to the decision in question. |
8. I was referred to Stair Memorial Encyclopaedia vol 1 para 327:
| "Interdict: General The remedy of interdict is an order from the court addressed to the defender that seeks to prevent unlawful injury to the pursuer's rights. It may be invoked either when a wrong is being actually committed or when a wrong is apprehended." It is further stated: "When the interdict is sought in exercise of the court's supervisory jurisdiction, the procedure of an application for judicial review must be used." It was submitted that this interdict was essentially in connection with a petition for judicial review and that any interim order for interdict could not be divorced from that. It was submitted that the Sheriff Court did not have jurisdiction to make an order for interim interdict in this case. |
| I was also referred to Stair para 330: "Suspension is often sought together with interdict to prevent the infringement of a right. It may be used as a method of staying diligence and for setting aside decisions of inferior criminal courts ... ... Under the procedure for application for judicial review introduced in 1985, the power of the Court of Session to make an order of suspension is confirmed. Insofar as reduction, interdict and suspension are means by which the court may exercise its supervisory jurisdiction, the remedies must all be sought by an application for judicial review." |
| I was further referred to Stair para 346: "Thus remedies such as the reduction of the decision of a public authority on grounds of ultra vires or breach of natural justice, or a declarator of an authority's duties must be sought by application for a judicial review, and not by an ordinary action initiated by summons or petition." It was suggested that interim orders in the Court of Session could deal with the particular facts and circumstances of any case. It was submitted that interdict was part of the exercise of the supervisory jurisdiction. It followed that the Sheriff Court did not have jurisdiction. |
9. I was also referred to Scott Robinson on Interdict at page 137:
| "In the context of interdict, the importance of ensuring the competency of the application for judicial review lies of course in the fact that, since the interdict sought is, in effect, an ancillary remedy, it must stand or fall by the competency of the application for judicial review. |
10. It was submitted that it was clear that the interdict sought here was an ancillary measure to protect the respondents pending the outcome of the judicial review process. It was submitted that the application for interim interdict must stand or fall on the basis of the competency of the whole application for judicial review.
| (b) No wrong or apprehended wrong |
11. I was referred to Burn Murdoch on the Scots Law of Interdict page 86 para 100:
| "A threat of injury is sufficient ground for an application for interdict, and in like manner a reasonable apprehension of injury from the proceedings of the parties complained against is also in many circumstances a very good ground for such an application." Again at para 101 "... A man must shew either that he has actually suffered, or has a reasonable cause to apprehend the risk of suffering, at the hands of another, before being entitled to ask an interdict against him." Also at para 145 "Interim interdict will be granted to prevent some danger to the complainer that would be a manifest injuria, and that is also imminent or threatened; for example "apprehension of personal injury, or of danger to life, or of great or perhaps irreparable loss." 12. It was suggested that the threat must be imminent and the harm anticipated must be a legal injuria. It was submitted there required to be an anticipated legal injury and a wrongful or illegal act. There was no wrongful act in this case. The appellants were proposing to demolish the building on their property in conformity with the planning permission granted to them. If the respondents were vindicated in the Court of Session in their application to reduce the grant of planning permission, any subsequent act of demolishing the building would then be wrongful. However it was not wrongful for the appellants to demolish the existing building at present because they had planning permission in their favour. |
13. I was further referred to Scott Robinson on Interdict page 1:
| "Interdict is a remedy granted by the court either against a wrong in course of being done or against an apprehended violation of a party's rights. It will only be granted upon evidence of a wrong or on grounds of reasonable apprehension that such a violation is intended." It was submitted that the writ did not specify a wrong. The interim interdict presently in force prevented the respondents from lawfully carrying out the work in conformity with the planning permission which had been granted in their favour. It was submitted that there was no wrongful act or threatened wrongful act or injury. There was no prima facie case and the pursuer and appellant was not entitled in these circumstances to seek interim interdict. It was suggested that the respondents proper remedy in this case was to raise an action in the Court of Session against the South Lanarkshire Council for judicial review of their decision to grant of planning permission on 10 October 2006 and to make application for an interim suspension of the grant of planning permission. If such an interim order were granted pending a full judicial review taking place, there would be a wrongful or illegal act by the appellants in this case if they sought to demolish the building in violation of the interim suspension order granted by the Court of Session. However, as matters stood, there was no interim suspension and the position remained that there was a grant of planning permission in favour of the respondents. |
| (c) No right title of interest for the pursuer to pursue this action |
14. It was submitted there was no legal relationship between the parties and no rights which the respondents held which have been or will be denied or infringed by the appellants. The respondents may have certain rights against the planning authority but they had no legal relationship with the appellants. I was referred to Burn Murdoch para 51:
| "In a question of title to sue, patrimony of interest is not used in so extended a sense; the prospect of money lost to a trader does not in itself confer on him any title to interdict the proceedings of a trade rival. For a person to have title to sue, he must be a party, (using the word in its wider sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies." I was also referred to Scott Robinson page 26: "Other examples of attempted use of interdict in planning cases includes Simpson v Edinburgh Corporation (1960 SC 313) where it was held that a neighbour, although having an interest to do so, had no title to interdict as ultra vires a decision of a planning authority. The power of a planning authority was discretionary and the legislation had not been amended to confer a separate right of action on an interested neighbour. When a planning application is called in by a regional council the applicant has no title to interdict the procedure." I was referred to the case of Wemyss Bay Caravan Park Limited - Petitioners, 1990 GWD 3-141 where Lord McCluskey stated: "In particular the character of the right which was said to be endangered by the respondent's activities was not spelled out. This was not unimportant because the rights of parties might differ depending upon what alleged right was said to be invaded. There was indeed no relevant averment of the right which was invaded or threatened to be in danger." |
15. In this case it was not clear what harm it was the respondents claim they had suffered at the hands of the appellants and what right was invaded or threatened. It was suggested here that the appellants were acting with the lawful authority of the planning permission granted in their favour.
Balance of convenience
16. I was referred to the well known dicta of Lord Justice Clerk Inglis (as he then was) in Baird v Monkland Iron and Steel Company 1862 24D 141 at 1425:
| "In the meantime, the question which presents itself for your Lordships consideration is, what is most for the interest of the parties? Is it that this interdict shall be granted, and the operation stopped for the present, or that the interdict shall be removed, and the operation allowed to go on; which question almost come to a balance of advantages and disadvantages on the two sides. If there is irreparable injury to be sustained by either recalling or keeping on the interdict, that is a very important consideration. If there is a irreparable injury on both sides, and as the necessary consequence of either proceeding, it raises a very difficult question indeed. Still, it will be a balance of convenience and injury, upon which side is the balance? Where is the greater injury to be apprehended? But if on the one side you see an unquestionably irreparable injury, and if on the other you do not find anything in the materials before you that has the appearance of an irreparable injury, then I think there can be no doubt upon which side the balance should turn." |
17. It was submitted that what was of importance was weighing the advantages and disadvantages of the parties. It was submitted for the appellants that they would incur a very substantial loss if interdict were continued to be granted. They had a building programme in place which awaited the grant of planning permission. That involved the ordering of a bespoke kit for the building of the new structure, which was very expensive. A demolition team was waiting to proceed with the demolition. This was a business venture where a serious amount of work had been done in advance. There would be losses in the region of £550,000 if the building works could not proceed. I was referred to Scott Robinson at page 179:
| "In question of interim interdict the relative inconvenience resulting to either party from its grant or refusal is a dominating consideration and must fall upon one side or the other ... The object is to regulate interim possession in such a way as to do least damage in the meantime to either party, at the same time to provide sufficiently for proper restitution being made for any damage suffered by the party who shall be found to have been in the right when the case is over." In this case the appellants did not make the decision. The South Lanarkshire Council had given the appellants permission to proceed with their demolition and building proposals. Given the significant and material loss that the appellants would suffer if prevented from acting on the lawful grant of planning permission, it was suggested the balance of convenience favoured the appellants if the respondents were held to have established a prima facie case. |
18. Counsel for the respondents moved for the expenses of the case on a solicitor/client basis referring to the case of Baker Hughes Limited v C C G Contracting International Limited 2005 SC 65. He also moved for certification for counsel.
Submissions for the defenders and appellants
19. It was submitted that the appeal court could not interfere with the discretion of the lower court unless it could be demonstrated that the Sheriff had misunderstood or misapplied the law. I was referred to Scottish and Universal Newspapers v Smith 1982 SLT 160 at 163:
| "When it comes to reviewing the discretion of the judge in the court below in determining where the balance of convenience lies, the appeal court is slow to interfere with that discretion unless the judge has misunderstood or misapplied the law or has reached an unreasonable conclusion on the facts." |
20. It was submitted that it was not appropriate to be hypercritical of the state of the pleadings. They set out that the objection was not dealt with fairly and that the decision was unreasonable having regard to the Wednesbury principles. If the appellants had the right to have their objection dealt with fairly then they had the right to a judicial review. It was suggested that the Sheriff weighed up the relative effects on parties of the demolition taking place. It was beyond doubt that the demolition of the respondents' house would end the matter. It would then be academic to review the planning decision of South Lanarkshire Council. It was suggested that the Sheriff had reasonably exercised her discretion in that the balance of convenience favoured the status quo. There was no legal basis to interfere with her discretionary decision.
21. It was accepted that for a grant of interdict there required to be (a) a prima facie case and (b) the balance of convenience favoured the grant of the interim interdict. It had been suggested on behalf of the appellants that someone who was not a party to the original planning decision could only be interdicted in the Court of Session. It was accepted that the forum for the judicial review was certainly the Court of Session. Rule 48.4 allowed incidental orders to be made in the Court of Session, but this was not mandatory. The current appellants would not necessarily be convened as defenders if an action for judicial review was taken in the Court of Session. The review would be concerned solely with the administrative decision taken by the local authority and the only two parties to the review would be the current respondents and the local authority.
22. It was suggested there was overlapping jurisdiction in the Sheriff Court and the Court of Session to restrain those who might act in furtherance of the decision that was being challenged. It was suggested that the local court has the ability and obligation to exercise equitable control of the situation pending determination of the application for judicial review. I was referred to the case of Borland v Lochwinnoch Golf Club 1986 SLT (Sh Ct) 13 where Lord Caplan stated at page 16:
| "In relation to interim interdict however the court does have an equitable control so that before the ultimate rights of the parties are determined the court can take into account the balance of convenience." |
23. It was submitted that all that the Sheriff was doing was exercising an equitable control of a situation where it was believed that the respondents would suffer loss of amenity if the present appellants were to act in consequence of a decision wrongfully made by the local authority. It was suggested that there were many instances where the immediacy of the action being raised was a crucial factor, and although it might be possible to proceed in the Court of Session and obtain interdict within the timescale, that does not elide the ability to raise proceedings in the local Sheriff Court where the injury will be sustained.
24. It was submitted that the dicta in the textbooks of Burn Murdoch and Scott Robinson were not habile to the situation where the wrong was committed by a third party and the right offended was the right to have an objection dealt with reasonably. It was suggested that all the interim interdict did was maintain the status quo where there is a triable issue between the respondents and the local authority. The Sheriff had expressed herself satisfied on that issue. At page 4 of her judgment she said:
| "I am satisfied that the respondents had averred a prima facie case and that the balance of convenience favoured the continuation of the interim interdict previously granted on 10 October 2006. In light of the admission by the appellants' agent that the intention was to proceed with the demolition the following week I considered there was an imminent threat to the respondents' position which required to be protected." |
25. It was submitted that on the basis that there was a prima facie case, there was no error in law. The decision itself was not unreasonable. It was submitted there was no basis for interfering with the Sheriff's decision.
26. Solicitor for the respondents was asked to define the wrong which he claimed had been infringed. He submitted that the wrong was the potential injury to the respondents by the disturbance of their amenity as it exists at present. The amenity of the area would be disturbed if the existing dwellinghouse was demolished and the proposed flats were erected. He accepted that the appellants had done nothing unlawful, but they were the conduit through which injury would be sustained. It was submitted that the law of interdict would be the same whether the matter was raised in the Court of Session or the Sheriff Court.
27. Counsel for the appellants replied that if an action was raised by the respondents in the Court of Session for judicial review, South Lanarkshire Council would be the defenders as it was their decision that was being challenged. The wrongful act that was said to exist was that of South Lanarkshire Council in granting planning permission. There was no injury or unlawful act, actual or apprehended, at the instance of the appellants who, if they demolished the property, would be acting in accordance with the grant of planning permission. It was submitted that any judicial review could involve the respondents seeking interim orders in terms of Rule 58.4. If the Court of Session could be persuaded to make an order for interim suspension of the grant of planning permission by South Lanarkshire Council, that interlocutor would be intimated to the appellant and it would then be unlawful for them to proceed with their demolition and building proposals. Interdict of the appellants would then be a course open to the respondents.
Decision
28. An application for interim interdict can only be granted in the Sheriff Court if (a) there is a prima facie case and (b) the balance of convenience favours the granting of interim interdict. To establish a prima facie case a pursuer requires to aver (i) a wrong in the course of being committed or an apprehended wrong. Interdict will only be granted where there is evidence of a wrong being committed or grounds for a reasonable apprehension that such a violation is intended and (ii) a right, title and interest to pursue the action. A pursuer must be a party to some legal relationship which gives him some right which the party against whom he raises the action either infringes or denies.
29. In this case the appellants on 10 October 2006 obtained planning permission from the planning authority of South Lanarkshire Council to demolish the existing dwellinghouse, garage and any out buildings presently situated and forming 8 Graham Street, The Village, East Kilbride and to erect a development of flatted dwellinghouses in their place. The respondents learned that the appellants proposed forthwith to commence the necessary demolition work. They therefore raised an action for interdict in Hamilton Sheriff Court against the appellants. On 10 October 2006 a Sheriff granted interim interdict at Hamilton Sheriff Court on the basis of the averments in the writ. He ordered the interim interdict to extend until 13 October 2006, for which date he fixed a hearing. That hearing took place before a second Sheriff on 13 October 2006. After hearing parties, the Sheriff of new granted interim interdict.
30. In my opinion at that time the appellants were proposing to act legally. They were acting in accordance with the grant of planning permission in their favour of 10 October 2006. At the time the respondents applied for interim interdict there was no evidence of any wrong or apprehended wrong being committed by the appellants. Solicitor for the respondents conceded during the course of the appeal that, in proceeding to put in hand the necessary preparations for the demolition work and proceeding therewith, the appellants were not acting unlawfully.
31. The respondents' complaint is with the decision of South Lanarkshire Council to grant planning permission to the appellants for their proposed development. Although at the date of the hearing of the appeal on 21 November 2006 they had not taken steps to do so, the respondents' position at the appeal was that it was their intention to raise proceedings in the Court of Session for judicial review of the decision of the planning committee of South Lanarkshire Council of 10 October 2006. They aver in their writ the grounds on which it is proposed to seek judicial review of that decision. However, the present respondents are not party to that decision. There is no right title or interest vested in the respondents quoad the appellants as far as the decision of the South Lanarkshire Council is concerned. In refer to Burn Murdoch para 51:
| "For a person to have title to sue, he must be a party (using the words ion its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies." In this case there is no legal relation between the appellants and the respondents which, it is alleged, the appellants either infringes or denies. Accordingly the respondents do not have any right, title or interest to seek interdict against the appellants who are proposing to act in accordance with the planning permission granted to them. |
32. In these circumstances I take the view that the respondents have not, prima facie, established that the appellants have committed any wrong or that the commission of any wrong by them is to be apprehended. The appellants propose to act legally in terms of their planning permission. The respondents have no right, title or interest to seek interdict against the appellants at this stage. Their complaint is with the decision of the South Lanarkshire Council.
33. It is not necessary for me to consider the balance of convenience in light of the decision which I have made. However, I have to say that, if I had taken the view that the respondents had established prima facie an apprehended wrong and that they had a right to pursue this action, I would have considered that the balance of convenience lay with the respondents and the maintenance of the status quo.
34. It is my view that the proper course as far as the respondents are concerned is to raise an action for judicial review of the decision of 10 October 2006 to grant planning permission by South Lanarkshire Council in the Court of Session. In terms of chapter 58.4 of the Court of Session Rules it would be then open to them immediately to seek interim suspension of that decision. Rule 58.4 provides:
| "The court, in exercising its supervisory jurisdiction on a petition for judicial review may - ... (b) make such order in relation to the decision in question as it thinks fit ... including an order for ... suspension, interdict ... and any interim order." If interim suspension of the decision of South Lanarkshire Council were granted in the Court of Session, it would then be unlawful for the appellants to proceed with their demolition and building proposals. If necessary, the respondents would be entitled to seek interim interdict against the appellants. That could be done either in the Court of Session as an ancillary matter in respect of the application for judicial review, or in the Sheriff Court. It would appear to me, however, to be sensible and practical to have all the orders relating to the case in one process in the Court of Session. |
35. For the reasons which I have given I shall recall the interim interdict granted on 13 October 2006. I was invited by counsel for the appellants, if I took that view, to grant decree of absolvitor. Solicitor for the respondents invited me, if I took that view, to dismiss the action. I consider the appropriate course in the circumstances is that the action be dismissed. There are no grounds in my opinion for an award of expenses of a solicitor and client basis. I award expenses of the cause and of the appeal to the appellants. I am prepared to sanction the employment of counsel for the appeal.