Scottish Water, Re Judicial Review [2004] ScotCS 41 (24 February 2004)

Scottish Water, Re Judicial Review [2004] ScotCS 41 (24 February 2004)

The Council has power under section 11(1) of the Orkney County Council Act 1974 to grant a works licence for maintenance of works already constructed, and such a grant is not retrospective licensing. The word 'maintain' allows licensing of works already in existence, and the Council acted within its statutory powers in granting the second licence.

Citation
[2004] ScotCS 41
Parties
Petitioner: Scottish Water; First Respondent: Scottish Ministers; Second Respondent: Orkney Islands Council; Third Respondent: Aquascot Group
Jurisdiction
Scotland
Judgment Date
24 February 2004
Procedural Posture
Judicial Review / Final Judgment
Outcome
petition sustained, decision of first respondents reduced
Legal Topics
Licensing Powers, Retrospective Licensing, Harbour Jurisdiction, Interpretation of Private Acts
Administrative Law Statutory Interpretation Local Government Law Licensing Powers Retrospective Licensing Harbour Jurisdiction Interpretation of Private Acts

Case Brief

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Parties

Scottish Water

Petitioner

Scottish Ministers

First Respondent

Orkney Islands Council

Second Respondent

Aquascot Group

Third Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether Orkney Islands Council had power under the Orkney County Council Act 1974 to grant a works licence for maintenance of works already constructed without prior authority
  2. 2 Whether the grant of such a licence constitutes retrospective licensing
  3. 3 Proper interpretation of 'maintain' in section 11(1) of the 1974 Act

Ratio Decidendi

The Council has power under section 11(1) of the Orkney County Council Act 1974 to grant a works licence for maintenance of works already constructed, and such a grant is not retrospective licensing. The word 'maintain' allows licensing of works already in existence, and the Council acted within its statutory powers in granting the second licence.

Court Disposition

petition sustained, decision of first respondents reduced

Orders

  • First and second pleas-in-law for first respondents repelled
  • First plea-in-law for third respondents repelled