Dumfries & Galloway Council, Re Application For Judicial Review [2000] ScotCS 217 (2 August 2000)

Dumfries & Galloway Council, Re Application For Judicial Review [2000] ScotCS 217 (2 August 2000)

The Notices of 28 October 1999 constituted conscious decisions by the Scottish Ministers as to the timing of the transfer of responsibility for roads, and are susceptible to judicial review. The Petitioners did not acquiesce or cause prejudice by delay, as ongoing discussions and reservation of position were evident. The petition is not incompetent, as the statutory procedures for challenging the Orders do not apply to the timing of the Notices, and the ouster clause does not bar the proceedings.

Citation
[2000] ScotCS 217
Parties
Petitioner: Dumfries and Galloway Council; Respondent: Scottish Ministers
Jurisdiction
Scotland
Judgment Date
02 August 2000
Procedural Posture
Judicial Review / First Hearing on Preliminary Issues
Outcome
Preliminary pleas for dismissal by the Respondents repelled; petition to proceed.
Legal Topics
Judicial Review, Statutory Interpretation, Local Government, Roads and Highways, Delay and Acquiescence, Competency of Proceedings
Administrative Law Public Law Judicial Review Statutory Interpretation Local Government Roads and Highways Delay and Acquiescence Competency of Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Dumfries and Galloway Council

Petitioner

Scottish Ministers

Respondent

Procedural Posture

Judicial Review / First Hearing on Preliminary Issues

Legal Issues

  1. 1 Whether the Notices issued by the Scottish Ministers on 28 October 1999 constitute decisions susceptible to judicial review
  2. 2 Whether the petition is barred by delay (mora) and acquiescence
  3. 3 Whether the petition is incompetent due to failure to exhaust alternative statutory remedies or due to statutory ouster

Ratio Decidendi

The Notices of 28 October 1999 constituted conscious decisions by the Scottish Ministers as to the timing of the transfer of responsibility for roads, and are susceptible to judicial review. The Petitioners did not acquiesce or cause prejudice by delay, as ongoing discussions and reservation of position were evident. The petition is not incompetent, as the statutory procedures for challenging the Orders do not apply to the timing of the Notices, and the ouster clause does not bar the proceedings.

Court Disposition

Preliminary pleas for dismissal by the Respondents repelled; petition to proceed.

Orders

  • Case to be put out By Order for further procedure on 15 August 2000 at 10.00am.