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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKellar v. The City Of Aberdeen Council [2005] ScotCS CSOH_9 (20 January 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_9.html Cite as: [2005] CSOH 9, [2005] ScotCS CSOH_9 |
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McKellar v. The City Of Aberdeen Council [2005] ScotCS CSOH_9 (20 January 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 9 |
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P155/04
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OPINION OF LORD MENZIES in the Petition of DUNCAN CHARLES ANDREW McKELLAR Petitioner; against THE CITY OF ABERDEEN COUNCIL Respondents: for Judicial Review of a decision of The City of Aberdeen Council to establish permanent wheeled bin fixtures along the length of Wallfield Crescent, Aberdeen ________________ |
Petitioner: Hajducki, Q.C., Kelly; Drummond Miller, W.S. (Bruce McDonald & Co., Aberdeen)
Respondents: Brailsford, Q.C.; Morton Fraser
20 January 2005
[1] The petitioner is the tenant of and resides at premises at 8 Wallfield Crescent, Aberdeen. The respondents are the local authority for the area in which these premises are situated. On 13 October 2000 the respondents resolved to establish permanent wheeled bins along Wallfield Crescent, Aberdeen, and shortly thereafter the respondents constructed and installed upright fixtures with attached wheeled bins in the carriageway along the length of Wallfield Crescent. The decision to establish these bins along this street was purportedly made in terms of powers conferred on the respondents by the Roads (Scotland) Act 1984 and Regulation 4 of the Roads (Traffic Calming) (Scotland) Regulations 1994. In December 2000 the petitioner sought judicial review of the respondents' decision by way of petition to this court. That petition contained inter alia the following pleas-in-law for the petitioner:"1. The purported decision of the respondents being one the respondents had no power to take et separatim being unlawful, declarator and reduction should be granted as first and second prayed for.
3. The respondents having failed to dismantle and remove the said permanent communal wheelie bins in fixtures et separatim concrete blocks established along the carriageway of Wallfield Crescent, an order that the respondents do so should be pronounced as fifth prayed for."
Having heard counsel for the petitioner and the respondents, on 15 March 2001 the Lord Ordinary pronounced the following interlocutor:
"The Lord Ordinary, having resumed consideration of the petition and answers, sustains the first and third pleas-in-law for the petitioner and in respect thereof (1) finds and declares that the respondents had no power to make their decision of 13 October 2000 to establish permanent wheelie bins along Wallfield Crescent, Aberdeen and reduces said decision accordingly, and decerns; (2) orders the respondents to dismantle and remove the permanent wheelie bin structures et separatim the concrete blocks established along the carriageway of Wallfield Crescent, Aberdeen and that within six weeks from this date, and decerns; continues the case on the question of expenses."
The Opinion of the Lord Ordinary is reported at 2001 S.L.T. 662.
[2] The respondents have not dismantled or removed the permanent wheelie bin structures or the concrete blocks established along the carriageway of Wallfield Crescent, Aberdeen. After sundry procedure (to which I shall refer below) on 9 February 2004 the petitioner lodged a Note in the petition in terms of Rule of Court 15.2 craving the court inter alia"to order enforcement of the court's interlocutor of 15 March 2001 and, should the respondents refuse to comply with the order, to grant a warrant to court officers to take possession of and remove the said permanent wheeled bin structures and all that is associated with them in Wallfield Crescent, Aberdeen, and to deliver them to the respondents."
In their answers to this Note the respondents relied on certain procedures which had been carried out following a meeting of their Environment and Infrastructure Committee on 18 March 2002. In particular, they relied on a Notice which was served upon the petitioner on 5 April 2002 in terms of the Environmental Protection Act 1990 section 46. The respondents averred that this Notice constituted the authority for wheeled bins remaining in Wallfield Crescent.
[3] Before dealing with counsel's submissions, it is appropriate that I should set out briefly the procedural history of this matter since the Lord Ordinary's Opinion and interlocutor of 15 March 2001. After this interlocutor, the respondents timeously sought review thereof, and on 5 October 2001 the cause was appointed to the Summar Roll for hearing. On 25 April 2002, on the motion of the respondents and of consent the reclaiming motion was dismissed. The result was that although the Lord Ordinary on 15 March 2001 ordered the respondents to dismantle and remove the structures within six weeks of that date, the procedures for the review of that interlocutor had the effect of suspending it until 25 April 2002 - by which time the Notice now relied on by the respondents had been served upon the Noter. I was told by senior counsel for the respondents that the decision to reclaim against the interlocutor of 15 March 2001 had been taken in good faith on the advice of junior counsel, and that the subsequent decision to seek dismissal of the reclaiming motion was also taken in good faith, on the advice of senior counsel who had recently been instructed by the respondents for the Summar Roll hearing. There was accordingly no question of bad faith or abuse of process on the part of the respondents. [4] Senior counsel for the petitioner submitted that the court order in favour of the petitioner still stood, and had been ignored by the respondents for over three years. He submitted that the respondents' failure to remove the wheelie bins and associated structures was a deliberate attempt to flout an order of this court which the respondents have not challenged. The respondents have never removed the wheelie bins and associated structures. They remained where they had been placed in October 2000, and the basis for their being there was therefore the decision made by the respondents on 13 October 2000, which the Lord Ordinary had reduced and declared to be beyond the power of the respondents by his interlocutor of 15 March 2001. The procedures purportedly carried out by the respondents under section 46 of the Environmental Protection Act 1990 in April 2002 were no more than a sham to confer an air of legitimacy on the respondents' decision to flout and ignore the court order. [5] Senior counsel for the petitioner referred me to the minutes of the respondents' Environment and Infrastructure Committee meeting of 18 March 2002. The relevant passage was headed "Wheeled Bin Enforcement Measures" and began with the introductory words:"The Committee had before it a report by the Corporate Director of Environment and Infrastructure which sought approval to introduce an enforcement regime relating to the use of wheeled bins for household waste."
Thereafter it was minuted that the Committee resolved
"to authorise the Principal Officer (Cleansing Client Services) or such other officer as may be authorised by the Corporate Director of Environment and Infrastructure, to issue notices under sections 46 and 47 of the Environmental Protection Act 1990 requiring the occupier of any premises to place waste for collection in receptacles specified for that purpose."
Counsel submitted that it was striking that there was no record of any decision by the Council to place wheeled bins in Wallfield Crescent for the purposes of the Environmental Protection Act 1990. It was clear from the minutes that what the Committee was concerned with was enforcement of the use of the existing wheeled bin regime and the requirement for occupiers of premises to place waste for collection in these wheeled bins. What was absent was any decision or determination that the wheeled bins should be placed there on any different statutory basis from that which the Council purported to use in October 2000, and which the court had held to be in excess of its powers.
[6] What was required, senior counsel for the petitioner maintained, was that the respondents should remove the wheeled bins and their associated fixtures, in implement of the order of this court. He conceded that it might then be open to the respondents to replace the bins and their associated fixtures in exactly the same places by virtue of a different statutory power. What they could not properly do however was to leave the bins and their fixtures where they were and then simply point to a different statutory justification for their remaining there. [7] Senior counsel for the respondents accepted that the wheeled bins had been placed where they now stood in about October 2000 and that this had been done in implement of a decision which had been reduced by this court. However, he pointed to the procedures which had been carried out following the meeting of the respondents' Environment and Infrastructure Committee on 18 March 2002, and maintained that these procedures were all that was required to render the continued positioning of the wheeled bins and their associated structures lawful. He referred me to section 46 of the Environmental Protection Act 1990, and in particular sub-sections (1), (4)(c) and (5)(a) of that section. The respondents are a waste collection authority to which that section applies. They had made a Notice in terms of section 46(1) requiring the petitioner to place waste for collection in the specified wheeled bins, and the appendix to that Notice made provision with respect to the placing of the wheeled bins on roads. Before this Notice was served the relevant roads authority had given their consent to this requirement. I was provided with the relevant Notice, appendix and memorandum of consent. Senior counsel pointed out that the petitioner had not challenged the decision of the Environment and Infrastructure Committee dated 18 March 2002, nor had he challenged the Notice in terms of section 46 of the Environmental Protection Act 1990 which was served on him on 5 April 2002. A right of appeal was expressly conferred on an occupier in receipt of such a notice, by reason of section 46(7) of the Environmental Protection Act 1990. No such appeal had been lodged, nor had any challenge been made to the procedures adopted by the respondents in 2002. The petitioner had not sought judicial review of these procedures or of the Committee's resolution of 18 March 2002, nor were there any averments in the present Note (even after adjustment) to suggest that this resolution or these procedures were ultra vires or unreasonable. These procedures were accordingly unchallenged authority for the positioning of these wheeled bins, and in the absence of any challenge to them in the course of the last two and a half years they must be regarded as a sound and sufficient basis for the continued positioning of the wheeled bins. [8] In reply, senior counsel for the petitioner maintained his position that the court order of 15 March 2001 still stands, and the respondents must implement it - even if this involved the incurring of public expense, and although the respondents may have other powers to position the wheeled bins and their associated fixtures in the same place. [9] I am not persuaded that it is appropriate to grant the orders sought by the petitioner in this Note. Of course, the court would be bound to treat with the utmost seriousness any wilful disregard of, or attempt to flout, an order of the court - particularly if such conduct was at the hands of a local authority, which may be expected to obey and adhere to the orders of a court. Similarly, the court has powers to deal with abuse of its own process. However, I am satisfied that in the present case the respondents have not disregarded the order of the court, nor have they attempted to flout it, nor have they been guilty of any abuse of process. It is unfortunate that the marking of a reclaiming motion, and the subsequent decision to abandon this, had the result of delaying the effect of the interlocutor of 15 March 2001; however, I accept unreservedly the assurance by senior counsel that both the decision to mark a reclaiming motion and the decision to seek its dismissal were taken in good faith and on the advice of counsel. [10] The basic premise which appears to underlie the petitioner's submissions is that if a court pronounces an order in favour of a party appearing before it and against another party, the party having the benefit of that order will always be entitled to seek its enforcement. In most circumstances, no doubt, the right to enforce an order of the court will follow from the order itself, but that right does not subsist indefinitely nor in all circumstances. There are circumstances in which a court may refuse to order enforcement of its own decree. For example, the obligation to recognise or obtemper a decree of court will prescribe after 20 years; a decree of specific implement of a contract may not be enforceable upon the occurrence of an event such as the outbreak of war, and a decree ordaining a party to comply with statutory provisions may not be enforceable if those provisions are repealed. There may be a change of circumstances which will render it inappropriate for the court to ordain a party to obtemper the terms of a decree. [11] In the present petition, it is clear that the Lord Ordinary's interlocutor of 15 March 2001 proceeded on the basis that the respondents had no power in terms of the Roads (Scotland) Act 1984 and the associated 1994 Regulations to decide to position permanent wheeled bins in Wallfield Crescent. That was the only basis for the respondents' decision. Since then, and before the reclaiming motion was dismissed, the respondents initiated and completed the procedures required by section 46 of the Environmental Protection Act 1990. These procedures have not been challenged, and I am satisfied that I should proceed on the basis that they were properly completed (as, on the basis of the productions before me, they appear to have been). The fact that the court pronounced an interlocutor on 15 March 2001 reducing the respondents' decision on one statutory basis does not preclude the respondents from proceeding on another statutory basis. If they do so without challenge and apparently in conformity with the necessary statutory requirements, that constitutes a change of circumstances which justifies the court in refusing to order the enforcement of the interlocutor of 15 March 2001. [12] For the sake of completeness, I do not consider that there is any force in the argument advanced on behalf of the petitioner that these bins required to be removed for a (possibly short) period of time before the procedure under section 46 of the Environmental Protection Act 1990 was carried out. To require this would fly in the face of common-sense, and might involve the expenditure of public money to no purpose. Nor do I consider that there is any force in the argument that the respondents have failed to make a fresh "decision" to position these bins in terms of the 1990 Act, their earlier decision having been reduced by the court. I observe that section 46 of the 1990 Act makes no reference to a decision to place receptacles in a particular position - the section focuses on a notice to be served on the occupier requiring the occupier to place waste in the receptacles. In any event, if it is necessary to do so, I should be prepared to infer from the respondents' Environment and Infrastructure Committee of 18 March 2002 that they made such a decision. [13] In conclusion, I am satisfied that the respondents have completed the procedures necessary to enable them to continue to have the wheeled bins and associated structures complained of situated in Wallfield Crescent, Aberdeen. The statutory basis for the presence of these bins in that street now is quite different from that in early 2001 and which gave rise to the interlocutor of 15 March 2001. That interlocutor was clearly directed to the situation which was before the court at that time. In light of the situation which is before the court at present, I am not prepared to grant the orders sought. I therefore refuse the prayer of the Note.
