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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDonald v Decision of the Scottish Ministers  ScotCS CSOH_6 (16 January 2008)
Cite as:  CSOH 6,  ScotCS CSOH_06,  ScotCS CSOH_6
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OUTER HOUSE, COURT OF SESSION
 CSOH 6
OPINION OF LORD MENZIES
in the application to the Court of Session
under the Town
and Country Planning
against a decision of the
First Respondents (The Scottish Ministers): Mure; M. Sinclair, Office of the Solicitor to Scottish Executive
 This application relates to a proposal for the
redevelopment of social housing in the Anderston area of
 The applicant questions the validity of the reporter's decision. He does so on four stated grounds of appeal. There is some degree of overlap between these grounds of appeal, but they raise essentially the same points as were raised by the applicant before the reporter at the public local inquiry. Stated shortly, they are (1) that the Scottish Ministers were prevented from considering the appeal because of the maxim "nemo debet esse judex in propria causa"; (2) that the Scottish Ministers were prohibited from considering the appeal by their being a party to the application; (3) that the reporter erred in law by not sustaining these arguments when they were put to him at the public local inquiry; and (4) that the applicant's right to a fair and impartial hearing before an independent and impartial tribunal in terms of Article 6(1) of the European Convention on Human Rights was breached.
 Scottish Homes was established by the Housing
 As narrated above, title to 495 flats in
the Anderston area of
"4.1 Communities Scotland shall ensure that the
Grant is made available to the Association following approval of the project
proposals referred to in clause 4.2.
4.2 Prior to the Works Commencement Date the Association shall submit project proposals in relation to the Works to Glasgow City Council.
4.3 The offers of Grant shall be in the form of the standard HAG Offer and the following additional conditions
(a) The obligation on the Association to re-house all of the Existing Tenants of the demolished Houses prior to letting houses to new tenants; and
(b) preserving the right to buy of the tenants of Scottish Homes as at the date of the Agreement of the demolished Houses.
4.4 Where insufficient numbers of Owner/occupiers agree to transfer their properties to the Association to allow the demolition and replacement of the tenanted Houses to take place, the Parties will agree a revised Programme and the amount of Grant will be adjusted accordingly.
 After Sanctuary applied to Glasgow City Council for outline planning permission for the proposal, the Director of Development and Regeneration Services prepared a report to the Development and Regeneration (Development Applications) sub-committee dated 20 January 2006 (No. 7/6 of process), which recommended the granting of outline planning permission subject to conditions. Included in this report (at page 6) was the following passage:
"In terms of 'use of public funds' it is stressed that the Association's proposals have been subject to rigorous technical and financial scrutiny by Communities Scotland. A Grant Funding Agreement between the Association and the Scottish Ministers was entered into in June 2005."
In the conclusion of the report, it was noted that "the proposed redevelopment has been approved by both Scottish Homes and Communities Scotland and Sanctuary Scotland Housing Association has carried out extensive public consultation on their plans through a secret ballot, preparation of a master plan, publicity brochures, an open day meeting and regular working groups ..."
"The proposed demolition has not been adequately justified and would be detrimental to the amenity of the surrounding, established, residential area."
 Sanctuary appealed to the Scottish Ministers against this refusal, and Mr Ronald Jackson was appointed as reporter to determine this appeal. His letter of appointment was subject to conditions contained in a schedule attached to it. These included the following conditions:
"1. In determining this case, or in making a recommendation to Scottish Ministers for their decision, you appointed (sic) as an independent contractor and not as the servant, agent or employee of the Scottish Ministers.
2. In determining the procedural aspects of the case you must comply with all relevant legislation and guidance issued by the Inquiry Reporters Unit ...
9. You shall have duties of confidentiality and loyalty to the Crown in respect of this case. These require you to exercise care in the use of information which you acquire in the course of dealing with this case and to protect information which is held in confidence. You will be subject to the Official Secrets Act 1989."
 The applicant addressed the reporter in support
of his statement (No. 7/9 of process) which raised the preliminary issues
noted above and made reference to legislation, authorities and the report by the
Director of Development and Regeneration Services. The reporter's determination is contained in
the decision letter dated
Submissions for the Applicant
 The applicant submitted that it was trite law
that no one can be a judge in his own cause.
In support of this, he referred me to two well known authorities: R v
 In support of his submission that the reporter erred in law in rejecting the applicant's arguments before him, the applicant referred me to R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295. The applicant stated that he asked the reporter if he was able to entertain legal submissions, and the reporter said that he was able to do so.
The reporter claimed to be independent of the Scottish Ministers, and clause 1 of the schedule to his letter of appointment appeared at first sight to support this. However, clause 9, which required the reporter to have a duty of loyalty to the Crown, negated this. The Scottish Ministers were to be regarded as the Crown for this purpose - see Scotland Act 1998, section 99; M v Home Office  3 All ER 537. The reporter therefore owed a duty of loyalty to the Scottish Ministers, and was not an independent and impartial tribunal. The applicant pointed out that he did not have to prove actual bias on the part of the reporter; all that was necessary was that a reasonable man might have a suspicion in the whole circumstances that there was a chance, however remote, of bias on the reporter's part. He reiterated that no one should be a judge in his own cause, and the reporter should be as distant from the subject-matter of the application as possible. Looking at the whole circumstances and in particular the Grant Funding Agreement and the schedule to the reporter's letter of appointment, the reporter was not sufficiently distant from this application.
Submissions for the Scottish
 Counsel for the Scottish Ministers submitted that, properly construed, the Grant Funding Agreement was not concerned in any way with planning permission, but was simply concerned with the mechanism by which central Government funds were released to finance Sanctuary's development proposal. It was clear from clause 8 (and indeed from the terms of the whole Agreement) that funds from the Scottish Ministers were channelled through Glasgow City Council, who had assumed responsibility for the administration of Housing Association Grant. That is why clause 4.2 required Sanctuary to submit proposals to Glasgow City Council, and the approvals in clause 4.1 related to funding approvals. If the approvals envisaged in clause 4.1 had related to planning permission, one would expect the clause to provide that planning permission would not be refused; there was no reference to planning permission in the Agreement, because the Agreement had nothing to do with planning permission. The fair-minded and informed observer would know that Communities Scotland cannot deliver any particular result from a planning application made to a local authority; the applicant's interpretation to the contrary was startling.
 Counsel did not shrink from the fact that the Scottish Ministers had been involved in discussions as to how this area might be redeveloped and improved - this was clear from the Master Plan (No.7/5 of process) and from the report from the Director of Development and Regeneration Services. The Scottish Ministers were not themselves applying for planning permission, and there was nothing sinister in their involvement.
 With regard to the reporter's position, counsel
did not suggest that he was wholly independent of the Executive - the Scottish
Ministers appointed him and could recall his appointment. (The reason that it was made clear in
clause 1 of the schedule to his letter of appointment that he was not an
employee of the Scottish Ministers was for reasons of employment law. The reason for clause 9 was solely to
maintain confidentiality.) With regard to
the specific grounds for the present application, there was no merit in
ground 2 (i.e. that the Scottish Ministers were a party to the application
and so prohibited from considering any appeal on it). Although the applicant made reference in this
ground to the minutes of the hearing of
 Counsel submitted that the test for considering grounds 1 and 4 was the same - "the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." - Porter v Magill  2 AC 357 per Lord Hope of Craighead at 494;  UKHL 67 at para.103. The law of Scotland before the introduction of the European Convention on Human Rights was accurately stated in London and Clydeside Estates Ltd v Secretary of State for Scotland 1987 S.L.T. 459 and City of Glasgow District Council v Secretary of State for Scotland (No.1) 1993 S.L.T. 198. On this basis, the applicant's arguments failed - in the present case, the involvement of Scottish Homes in discussing the Master Plan, and of Scottish Ministers in providing funding for social housing, was no greater (and was in fact less) than the involvement of the Secretary of State in those cases. Moreover, there was nothing to suggest that the individual reporter in the present case had any connection with any of the parties to the appeal. Government often had a peripheral involvement in developments - for example, industrial development where a company is only applying for planning permission because it has been offered Government grants, or National Health Service developments or roads proposals. The case of R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions (supra) contained examples where the Secretary of State's involvement was considerably greater than that of the Scottish Ministers in the present case. Alconbury concerned applications in which the Secretary of State's department had direct pecuniary interest, where land which was subject to development proposals belonged to Government departments (e.g. the Ministry of Defence and the Highways Agency) and where the decision was called in and was to be made by the Secretary of State himself. These decisions were still not held to be incompatible with Article 6(1), because of the power of the High Court in judicial review proceedings to review the legality of the decision and the procedures followed. Alconbury was a more extreme case than the present - here the decision was the reporter's and not that of the Scottish Ministers themselves. Any involvement of the Scottish Ministers took place before the planning application was made to Glasgow City Council. The applicant was not suggesting that this application to the Court of Session was inadequate to cure any lack of independence of the reporter.
 With regard to the third ground, the reporter
was correct to reach the view that he did with regard to the applicant's
objections. He was bound by the Town and
Country Planning Appeals (Determination by Appointed Person) (Inquiries
Submissions for Sanctuary
 Counsel for Sanctuary adopted in full the submissions made on behalf of the Scottish Ministers. As the applicant accepted the Alconbury decision as up-to-date law, this was determinative of the present proceedings. The interpretation of clause 4.1 of the Grant Funding Agreement urged by the Scottish Ministers was to be preferred to that urged by the applicant. Support for this was to be found from the fact that after Glasgow City Council refused Sanctuary's application for planning permission, Sanctuary did not sue the Scottish Ministers for breach of their (alleged) obligation to ensure that planning permission was not unreasonably withheld, but instead lodged an appeal against that refusal in accordance with the statutory procedures. Having regard to the context of the Grant Funding Agreement, it was inconceivable that Scottish Ministers would enter a contractual obligation which would have the effect of allowing any appeal to them from a refusal of planning permission by Glasgow City Council. However, counsel submitted that however clause 4.1 of the Grant Funding Agreement was construed, the matter was largely academic, because the present application was ill-founded as a result of the Alconbury decision.
Reply by the applicant
 The applicant submitted that clause 4.1 went beyond mere funding approvals and extended to planning approvals. This was clear from a comparison between clause 4.1 and clause 4.5. The latter related to phasing of the development and approval of the release of funds, and the approvals referred to in the former must be something different. The whole basis of the Grant Funding Agreement was conditional on planning permission being granted for the project proposals. Grant Funding was put in place in order for the project proposals to take place, provided that planning permission was granted for them. This interpretation accorded with the recommendation of the Director in his report - "Grant subject to conditions".
 With regard to Alconbury, the applicant maintained that the Scottish Ministers have throughout pursued a policy objective of their own in this matter. They abdicated their responsibilities as landlords of these properties to Sanctuary, by Communities Scotland promoting and funding a change of landlord. This involvement was, the applicant maintained, greater than the involvement of the Secretary of State in Alconbury. The reporter should have disclosed his obligation of loyalty to the Scottish Ministers imposed on him by clause 9 of his letter of appointment. He reiterated that the Scottish Ministers were in effect judges in their own cause, and their actings were contrary to the statements of law set out in the Dimes and Pinochet cases. He invited me to reduce the decision of the reporter.
 The Scottish Ministers were not directly involved as a party to Sanctuary's application for planning permission. Scottish Homes appear to have supported the principle of the proposed development, and the Scottish Ministers were prepared, through Communities Scotland and Glasgow City Council, to provide funding for the proposal. No doubt the proposal was consistent with the policies of the Scottish Ministers. However, the Scottish Ministers did not have a direct pecuniary interest in the granting of planning permission for this proposal. Their interest was substantially less than the interest of the Secretary of State in the various cases decided in Alconbury. Moreover, unlike the examples in Alconbury, the Scottish Ministers did not determine themselves Sanctuary's appeal against the refusal of planning permission; instead, the determination of this appeal was delegated to a reporter instructed by the Scottish Executive Development Department Inquiry Reporters Unit. That reporter required to follow the procedures set out in The Town and Country Planning Appeals (Determination by Appointed Person) (Inquiries Procedure) (
 The applicant relied heavily in his submissions
on observations in the House of Lords in the Dimes and Pinochet (No.2) cases. However, these were authorities dealing with
the decisions of judges when acting in a judicial capacity. It was accepted by the applicant that the
reporter in the present case was acting in an administrative capacity, albeit in
a quasi judicial function. It must be borne in mind that not all the
principles that apply to actings performed in a judicial capacity apply to
administrative decisions. As Lord Caplan
observed in City of Glasgow District
Council v Secretary of State for
"I would accept that there are certain rules of natural justice that are so fundamental that they would apply to a Minister carrying out an executive responsibility as much as to a tribunal with a more exclusively judicial role. The obligation to act bona fide is an example of one. However, in regarding the authorities quoted I think it could be misleading to equate a Government Minister making an administrative decision with a body which has a neutral adjudicative role. A Minister cannot be expected to abdicate from his statutory responsibilities ...".
As was held in London and Clydeside Estates Ltd v Secretary of State for Scotland, a Minister is not disqualified from exercising a quasi judicial function merely because of support for a particular policy so far as related to a particular development.
 The applicant argues that, against the background of support for the development proposal from Scottish Homes and thereafter Communities Scotland, the terms of clause 4.1 of the Grant Funding Agreement and the terms of the reporter's letter of appointment are sufficient to make the fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the reporter was biased. Considering these factors, I am unable to reach the view that the fair-minded and informed observer would reach this conclusion.
 The earlier involvement of Scottish Homes, and
thereafter Communities Scotland, in exploring possibilities for the regeneration
and redevelopment of this area of
 In any event, even if I am wrong in my interpretation of the Grant Funding Agreement and/or the schedule to the reporter's letter of appointment, it seems to me that the Alconbury decision is a complete answer to this application. Neither the Scottish Ministers nor Sanctuary seek to suggest that the reporter was a completely independent and impartial tribunal - although again I observe that he was considerably more independent and impartial than the Secretary of State in the examples considered by the House of Lords in Alconbury. Be that as it may, the availability of a statutory application to this court to quash the decision of the reporter is sufficient to ensure compatibility with Article 6(1) of the European Convention on Human Rights, and is a complete answer to the applicant's arguments.