Scottish Government

A96(T)
FOCHABERS AND MOSSTODLOCH BYPASS
REPORT OF INQUIRY INTO OBJECTIONS
(5 DRAFT ORDERS)

CLAIMS FOR AWARDS OF EXPENSES

REPORTER: Philip G Hutchinson BA(Hons) M Phil FRTPI
INQUIRY DATES: 9 September û 28 October 2003
FILE REFs: OTG/41718/1. 3. 3v, 12 & 18

Ministers,

1. In accordance with my minute of appointment received on 25 April 2003 I conducted a public local inquiry into objections to 5 draft orders associated with the proposed A96(T) Fochabers and Mosstodloch bypass. As separately reported, the inquiry took place in the Fochabers Public Institute and ran from 9 September 2003 until 28 October 2003 inclusive (with an adjournment in the week of 13 October). My main report of even date is being concurrently submitted, and here I report on joint claims for awards of expenses lodged by Counsel for the allied statutory objectors, on the final day of the inquiry.

BACKGROUND

2. The statutory objectors on whose behalf the claims were lodged are, at the end of the day, confined to the following parties:

• The Gordon Lennox Estate Co Ltd
• G A Duncan & Sons
• W A Baxter & Sons Ltd

3. Another statutory objector whose position requires to be considered is Glenmore Properties Ltd, owners of plot 7 in the CPO, and I return to this party's interest below.

THE CLAIM(S)

4. The claim on behalf of parties at paragraph 2 above commenced with a reference to paragraph 4 of Circular 6/1990. This states that in relation to compulsory purchase orders, where an inquiry has been held, an award of expenses will normally be made as a matter of course to a successful statutory objector against the authority which made the order. It was submitted that in this connection the objectors to the CPO are in a position distinct from all other objectors. This is clear from paragraphs 16 - 20 of the circular. It follows from these provisions that if the objections made by those at paragraph 2 above are sustained then there should be awards of expenses against the Promoters.

5. It was submitted that awards should be based on the Court of Session Scale to adequately reflect the complexity of the cases and the number of issues requiring to be addressed. This would also reflect the very substantial number of documents involved and the associated level of responsibility. It was submitted that the case was suitable for the employment of Junior Counsel. In addition it was submitted that the following were required as expert witnesses; Mr H Munro, Mr M Woods, Mr A E Watson, Professor G Fleming and Professor A D Hawkins (see details on page 3 of Appendix 1 in Volume 2).

6. The Promoters offered no objection to the claim(s).

CONCLUSIONS

7. I agree that one cannot separate the detailed outcomes of the inquiry from parties' eligibility for awards of expenses in the light of the circular. My recommendations starting on page 134 of my report (Volume 1) indicate that the objections made to the CPO by the Gordon Lennox Estate Co Ltd and W A Baxter & Sons Ltd should not succeed, notwithstanding my recommendation that the mitigation strategy within the designed landscape should be reviewed. Accordingly I am unable to recommend awards of expenses in favour of these particular objectors.

8. Provided that my principal recommendations are accepted, the objection by G A Duncan & Sons will have met with a degree of success in that an area of approximately 2.2 ha northeast and east of Duncan Avenue will be returned to the company on completion of the scheme. In addition the land take of the scheme would be reduced by the agreement about the deletion of a new access to the walled garden (GAD.4). These reductions in the final land take should be reflected in a partial award of expenses in favour of the company. This should be calculated when final measurements of the respective areas are available, in the light of the various adjustments listed at recommendations 3, 5(3) and 6 in my main report ( Volume 1).

9. So far as the objection by G A Duncan & Sons is concerned, I agree that it was appropriate to instruct Junior Counsel and that the case was of the claimed complexity. The question of relevant expert witnesses nevertheless requires particular care. Although witnesses are listed in Appendix 1 as if they appeared in specific and mutually exclusive groupings, their evidence (but for that of Glenmore Properties Ltd) was common to the entire opposition. Evidence was only presented as listed in order to assist me in the economical conduct of the inquiry. However, the extent of this party's success is based overwhelmingly on detailed landscape and agricultural evidence. This success relates to the reduced land take in the severed area northeast and east of Duncan Avenue and to the reduced land take alongside the bypass as a result of the agreement recorded at GAD.4 - see also recommendation 6 in my main report (Volume 1). The foregoing agreement was reached only in the course of the inquiry after all preparations were made and after relevant personnel had been instructed.

10. I therefore consider that a partial award of expenses in favour of the company should be based - in proportion to a detailed calculation of these reduced land takes - on the very reasonable need to instruct Mr M Wood (landscape architect) and Mr P W Cook (of SAC) as expert witnesses.

11. The objection by Glenmore Properties Ltd relates to the very distinct matter of plot 7, and was subported by evidence from two company witnesses. This objector was not legally represented and attended the inquiry for a single half-day, seeking no opportunity to cross-examine or to make a closing submission. In addition the cases for and against the acquisition of plot 7 were fairly elementary. At no stage did I note an explicit claim for an award of expenses. Nevertheless, if recommendation 5(2) in my main report is accepted the company will have met with total success. The words used in paragraphs 16 - 17 of the circular cover this objector's situation and do not actually require the explicit lodging of a claim for an award. In particular paragraph 16 unequivocally states "if a statutory objector to a compulsory purchase order is successful, an award of expenses will be made in his favour unless there are exceptional reasons for not doing so".

12. I therefore consider that an award of expenses in favour of Glenmore Properties Ltd is appropriate, but I am unable to certify any particular scale or level of representation. I therefore simply recommend that this objector should be awarded the actual expenses incurred by the two company witnesses in preparing for, and attending, the inquiry.

RECOMMENDATIONS ON EXPENSES

13. I recommend as follows:

1. That a partial award of expenses should be made in favour of G A Duncan & Sons to reflect the reduced final land take from Gordon Castle Farm that would result from recommendations 3, 5(3) and 6 on pages 134 -135 of my main report (Volume 1). In this connection I consider that the Court of Session Scale is appropriate, that it was necessary to instruct Junior Counsel and that Mr M Wood and Mr P W Cook were needed as expert witnesses.

2. That an award of expenses should be made in favour of Glenmore Properties Ltd. I recommend that the award is limited to the actual expenses incurred by the two company witnesses in preparing for, and attending, the inquiry.

3. That no awards of expenses should be made in favour of the Gordon Lennox Estate Co Ltd and W A Baxter & Sons Ltd.

Yours faithfully

Philip G Hutchinson

PHILIP G HUTCHINSON
Reporter