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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sheltered Housing Management Ltd v Jackson [2008] ScotCS CSIH_58 (11 November 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_58.html Cite as: [2008] CSIH 58, [2008] ScotCS CSIH_58 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lord OsborneLord Nimmo SmithLord Reed |
[2008] CSIH 58XA108/08OPINION OF THE COURT delivered by LORD OSBORNE in the Appeal under Section 11(7)(b)
of the Tribunals and Inquiries Act 1992 by SHELTERED HOUSING
MANAGEMENT LIMITED Appellants; against A decision of the Lands
Tribunal for (Margaret Jack,
Respondent) _______ |
Appellants: Clark, Q.C.; Balfour + Manson, LLP
Respondent: J. J. Mitchell,
Q.C.; Paull & Williamsons
11 November 2008
The background
circumstances
[1] This appeal under section 11(7)(b)
of the Tribunals and Inquiries Act 1992, "the 1992 Act", bears to be an appeal
against a decision of the Lands Tribunal for
sheltered housing development. The application was made by the appellants,
who were the managers of that development.
They were the superiors. They are
the owners of residual property, including the warden's flat, warden's office,
guest bedrooms and other facilities in the building. A two-thirds majority of the flat proprietors
have, however, exercised their right under section 28 of the 2003 Act
to appoint different managers and have also executed a new deed replacing the
Deed of Conditions referred to. This proposed
deed sets out a new set of conditions bringing the title position up-to-date
and changing the basis of arrangements between the managers and the flat
owners. Generally, the appellants did
not object to these parts of the proposed deed.
However, they did object to new provisions restricting the use of the
residential property owned by them to use ancillary to the sheltered
flats. That property was previously
unburdened. They also complained of the
level fixed in the proposed deed of a "rental" payment by the flat owners to
them in respect of use of their property.
The appellants submitted that certain of the burdens sought to be
imposed were not valid real burdens or community burdens, making the deed and
the procedure to impose it incompetent.
They also invoked the tests set out in section 98(b) of the 2003
Act for preserving the existing deed.
The respondent was the proposer of the new deed, being a representative
flat owner who was also a resident and the chairperson of the residents'
committee.
[2] After a
hearing of evidence on 21 - 23 September and 2 October 2006, the
Lands Tribunal issued what bore to be an "Opinion", on 5 January 2007, in
which the Tribunal stated that it had "decided" that the proposed deed did
create valid real burdens which were community burdens and was competent; and that the appellants and applicants had
failed to establish either of the conditions set out in section 98(b) of
the 2003 Act. The application for
preservation accordingly failed. At the
conclusion of this Opinion the Lands Tribunal stated:
"We accordingly refuse the
application and shall make the appropriate order under section 90(1)
varying the community burdens accordingly."
This Opinion bore a certificate signed by the Clerk to the
Lands Tribunal in the following terms:
"Certified a true copy of the statement
of reasons for the decision of the Lands Tribunal for
[3] Thereafter,
the Lands Tribunal considered the issue of compensation arising out of the
decision just referred to. Against the
background of the decision by the Lands Tribunal to refuse the application for
preservation, which it did in its Opinion issued on 5 January 2007, the
Tribunal recognised that the applicants were entitled to apply for compensation
in broadly the same way, and subject to the same test, as owners of benefited
property who had opposed discharge or variation of a title condition. The applicants made such a claim on the basis
that they would suffer substantial loss or disadvantage in consequence of the
variation which the Tribunal, having refused their application to preserve,
would make. A hearing on the claim for
compensation took place on
"Certified a true copy of the Opinion
of the Lands Tribunal for
[4] In what bears
to be a "Note" issued to parties on
"Certified a true copy of the
decision of the Lands Tribunal for
[5] Also on
"DO HEREBY (First) REFUSE the
application and accordingly VARY the said community burdens in the Deed of
Conditions dated and recorded aforesaid by deleting them in their entirety and
substitute in lieu thereof the provisions of clauses 1 to 11 of the proposed
deed, which are in the following terms:
...
(Here the Tribunal narrated the clauses concerned)
...
(Second) DIRECT that the respondent pays to the Applicants the sum of ...
(£9,178) by way of compensation in terms of section 90(7)(a) of the
Act; and FURTHER DIRECT that unless the
said sum is so paid within the period of six months from the date hereof, this
Order shall be void on the expiry of the said period of six months; and (Third) (i) FIND the Applicant liable to
the Respondent in her expenses of the application (under exception of the claim
for compensation), with a 40% increase in the fees authorised by the Sheriff
Court Table of Fees; (ii) FIND the
Respondent liable to the Applicants in their expenses referable to the claim for
compensation, from the date of that submission onwards; all of which expenses shall be on the Sheriff
Court scale and which failing agreement, shall be taxed by the Auditor of
Aberdeen Sheriff Court; (iii) sanction
the employment of junior counsel; and
(iv) CERTIFY the employment of Mr G MacDonald, FRICS and Mr J Begg,
MRICS as skilled witnesses."
There was appended to the foregoing Order a schedule, the
contents of which are, for present purposes, immaterial, which bore a
certificate in the following terms:
"This is the schedule referred to in
the foregoing Order of the Lands Tribunal dated
That certificate was signed by members of the Tribunal.
[6] In their
appeal to this court, having narrated that the appeal under
section 11(7)(b) of the 1992 Act was against "a decision of the Lands
Tribunal for Scotland, communicated to the appellants on 9 June 2008", the
appellants go on to set forth the grounds of the appeal. In paragraphs 1 to 3 inclusive of the
grounds, the appellants set forth several criticisms of the Opinion of the Lands
Tribunal, dated
[7] In her Answers
to the appeal, the respondent responds to the grounds of appeal in this
way. In relation to the criticisms of
the Opinion of the Tribunal, dated
"the Tribunal gave its decision on
these matters in terms of section 11 of the Tribunal and Inquiries Act
1992 and Rule 27 of the Lands Tribunal for Scotland Rules 2003, in writing
and with a statement of reasons. Its
decision was intimated to parties on or about that date. It was appealable in terms of Rule of
Court 41.20, within 42 days thereafter. It is accordingly now too late for any appeal
such as is stated, and this ground of appeal should be refused."
It is to be noted that the present appeal, which was lodged
on
Submissions of the
respondent
[8] Having explained the factual
circumstances which have given rise to this appeal, senior counsel for the
respondents drew the attention of the court to the applicable Rules of
Court. They were to be found in
Part III of Chapter 41.
Historically appeal from the Lands Tribunal for
"(i) the date on which the decision appealed
against was intimated to the appellant;
...".
Senior counsel accepted that the provisions of Rule 41.4
could have applied, but that course had not been selected. Thus the starting point for the running of
the 42 day period, in the present case was the date on which the decision
appealed against had been intimated to the appellant.
[9] Senior
counsel went on to draw our attention to the provisions of the 1992 Act. Under section 10 and Schedule 1, it
was necessary for the Lands Tribunal for
[10] Senior counsel
drew our attention to the provisions of the Lands Tribunal for Scotland Rules
2003 (S.S.I. 2203 No.452). It was
necessary to note Rule 27. It
provided as follows:
"(1) The
decision of the Tribunal in any proceedings shall be given in writing and shall
include a statement of the Tribunal's reasons for its decision.
...
(3) The
Tribunal shall send a copy of the decision to all parties to the proceedings.
(4) An
accidental or arithmetical error in any decision of the Tribunal may be
corrected by the Tribunal if, before making the correction, it has given notice
of its intention to make it to all those who were parties to the
proceedings.
...".
Rule 28 provided for decision-making by the Tribunal on
the subject of expenses.
[11] Having dealt
with the statutory background, senior counsel turned next to examine what the
Tribunal had done in the present case.
It was plain that the Tribunal had dealt with the matters before it in
several stages. The first of the
decisions of the Tribunal was that issued on
[12] Turning to
deal with the way in which appeals had been brought against decisions of the
Lands Tribunal for
Submissions of the
appellants
[13] Counsel for the appellants moved the court
to send the case to the Summar Roll for hearing. What was important was the nature of the
Order of the Tribunal issued on
[14] Counsel
submitted that there could not have been a competent appeal within 42 days
after the event which occurred on
[15] Counsel turned
next to examine some relevant authorities relating to the concept of a "decision". He contended that these showed that the word
should be given the natural and obvious meaning of a judicial order. The question was what was the ordinary or
natural meaning of the word decision, as used in the 1992 Act. So far as counsel could discover, there was
no case law directly bearing on the issue of the meaning of the word in
section 11 of the 1992 Act, or indeed in the equivalent section of its
predecessor.
[16] The first
relevant authority was Commonwealth of
Australia v The Bank of New South
Wales [1950] AC 235. The statutory
language which was interpreted appeared at page 238 and involved the use
of the words "a decision of the High Court".
At pages 294 to 295 it was said that "decision" meant the formal
expression of an adjudication in a suit not simply the pronouncement of an
opinion on a question of law. In Khan v Chand (1902) L.R. 30 I.A. 35, what was under interpretation was the
expression "decision of the court" in section 596 of the Code of Civil
Procedure. The decision of the Privy
Council was that the expression "decision of the court" had the same meaning as
that attributed to the word "decree".
Reference was made in particular to the observations at
page 39.
[17] Counsel went
on to rely upon Rohatgi v Health Care Complaints Commission (the
Supreme Court of New South Wales, Court of Appeal) (26 July 1996; unreported.)
At page 5 the court expressed the view that the natural meaning of
"decision" was the order of the court or tribunal. Counsel next relied upon Regina v Ceredigion County
Council [2005] 1 WLR 3626, particularly paragraphs 38 and 47, in
which it was held that the word "decision" could not be construed as meaning
simply grounds or reasons. That view was
upheld in the House of Lords in [2007] 1 WLR 1400 at paragraph 18.
[18] Finally
counsel drew our attention to
[19] Summarising
the authorities upon which he had relied, which were of high standing, counsel
said that they supported the view that the Order of
[20] Making some
further points, counsel drew attention to George
Wimpey East Scotland Limited v Fleming
2006 S.L.T. (Lands Tribunal) 2, at page 15, where the Lands Tribunal said
that it could not formally make the variation order in question there until it
had disposed of the claim for compensation.
The Tribunal were considering the same compensation provisions in that
case as were involved in the present one.
Thus, the application for compensation had to follow an indication of
the position, or "decision" of the Tribunal on the prior question. Nevertheless, an appeal might not be
attractive to a party in the absence of some proposed decision on compensation. Further, it was quite inappropriate to
characterise the order of
Reply on behalf of the
respondent
[21] Senior counsel
for the respondent expressed the view that the content of the Lands Tribunal
for Scotland Rules 2003 was inconsistent with current legislation and other
rules. The reference in Rule 6 to
21 days and the disposal by the Court of Session of a case stated by the
Tribunal were inconsistent with the current mechanisms of appeal. Senior counsel submitted that the appellants'
submission to the effect that only the Order issued on
The decision
[22] Section 11(1) and (8) of the 1992
Act, under which this appeal has been brought to this court, prescribe no
period within which such an appeal must be brought. Accordingly, the time limit applicable to
such appeals is that provided for by Rule of Court 41.20(1)(b). Since there was no suggestion that, in the
present case, the Lands Tribunal issued a statement of reasons for its decision
later than the decision, the matter is regulated by subparagraph (b)(i) of
Rule 41.20(1). It specifies the
period thus "where no such period is prescribed (by the enactment under which
the appeal is brought), within 42 days after - (i) the date on which the
decision appealed against was intimated to the appellant; ...".
Rule of Court 41.1(2), which deals with the interpretation of
Chapter 41 of the Rules of Court states that "unless the context otherwise
requires - ... 'decision' includes assessment, determination, order or
scheme; ...".
[23] It is plain
that the present appeal was brought within a period of 42 days after the
Lands Tribunal made its Order, issued on
"In this section 'decision' includes
any direction or order, and references to the giving of a decision shall be
construed accordingly".
[24] One of the
features of the Tribunal's Order of
"Any statement of the reasons for a
decision referred to in paragraph (a) or (b) of subsection (1), whether given
in pursuance of that subsection or of any other statutory provision, shall be
taken to form part of the decision and accordingly to be incorporated in the
record."
Having regard to the fact that, in the documents issued by
the Tribunal on 5 January 2007 and 11 October 2007 there are
statements of the Tribunal's reasons for the decisions which they record in
those documents and which are reflected in the terms of the subsequent Order,
it is plain to us that the Order of 9 June 2008 must be taken to embrace
those statements of reasons, in accordance with section 10(6) of the 1992
Act. In our view, it follows from that state
of affairs that criticism of the reasons given in the Opinions of
[25] Looking at the
terminology employed in that Order, we note that it indicates a present
determination, being a refusal, of the appellants' application; it includes a direction that the respondent
should pay the specified sum of money to the appellants; and finally makes findings regarding the
liability of the appellants to the respondent in expenses. We have concluded with little difficulty that
that Order was a "decision" of the Lands Tribunal, within the meaning of
section 11(10) of the 1992 Act.
Thus, in our view, it was timeously made the subject of appeal in the
appeal document lodged on behalf of the appellants on
[26] Counsel for
the appellants cited to us several cases in which the meaning of the term
"decision" was considered. We have to
recognise that, with the exception of
[27] Before parting
with this case, we feel that it is appropriate to make certain observations
concerning the operation of appeals from the Lands Tribunal for
[28] During the
course of the discussion before us, some reference was made to the Lands
Tribunal for Scotland Rules 2003. We
consider that certain features of those rules are obviously
unsatisfactory. Rule 6, which is concerned
with the taking of effect of orders of the Tribunal provides for the taking of
effect of orders on the occurrence of whichever of certain specified events
last occurs after the Tribunal has made an order. Among the events specified is the expiry of a
period of 21 days after the date when the order was made by the
Tribunal. We are at a loss to understand
the relevance of that period, having regard to the period for appeals specified
in Rule of Court 41.20. Among the
other events specified is the disposal by the Court of Session of a stated case
by the Tribunal on appeal to that court, or, if there is an appeal to the House
of Lords, the disposal of the case by the House of Lords. No mention is made of the disposal of an
appeal against a decision of the Tribunal brought under Rule of
Court 41.19, a common method of appeal in relation to the decisions of the
Tribunal. Likewise, among the specified
events is the abandonment or other termination of the proceedings on a case
stated by the Tribunal. Again there is
no mention of the abandonment or other termination of an appeal under Rule of
Court 41.19. We consider that these
shortcomings of the Rules of the Tribunal should be addressed so as to avoid
the confusion which the present formulation of those Rules is likely to
engender.