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Volume 2
Annex F Appeals
F.1. Chapter 5 of the 2006 Act gives local authorities powers to require owners to carry out work to, or demolish, their property in certain circumstances. They can also step in to enforce this work or demolition.
F.2. The Act gives owners certain rights of appeal against various stages in these processes.
F.3. This annex provides information on these rights of appeal. It is not statutory guidance, and in all cases local authorities should seek their own legal advice to ensure they are complying with the requirements of the Act. But local authorities may find it useful to consider the points which this annex makes.
F.4. The local authority should consider when to provide information on people's rights of appeal. For example, it would be good practice to include this information when they serve notice of the decisions against which they can appeal.
Rights of appeal
F.5. There are rights of appeal against a number of decisions which the local authority can make when using its powers under Part 1 Chapter 5 of the Act.
s64 (1)
F.6. For work and demolition notices, those decisions are:
- to serve a notice;
- to carry out additional work when enforcing a notice, unless it is not necessary to serve a notice for this (see Chapter 4 and Annex E for further information);
- to recover expenses following enforcement of notices (see Annex G for more information); or
- to refuse to grant a certificate to confirm that a work notice has been completed.
F.7. The local authority must serve notice of each of these decisions. Annex E provides further information on the requirements for serving documents.
s64 (3)
F.8. Only the person on whom the local authority served the notice has the right to appeal.
s64(1) s66(1)
F.9. That person will have 21 days to appeal to the sheriff by summary application. The 21 day period will start from the date on which the local authority served the notice (see Annex E for more information on when a document is served).
s64 (7)
F.10. But the sheriff can decide to hear the appeal after the 21 day period, if the authority or person can show cause for this.
F.11. A person cannot approach the Ombudsman to investigate any of the decisions which F.6 sets out. The Scottish Public Services Ombudsman Act 2002 states that the Ombudsman must not investigate any matter where the person aggrieved has or had a remedy by way of proceedings in any court of law. This would be the case where an owner has the right to appeal under the 2006 Act.
Additional points regarding work and demolition notices
s66 (2)
F.12. The person should appeal at the point at which they disagree with the local authority's decision. For example, he or she could not raise questions regarding the decision to serve a work notice in an appeal against the recovery of expenses which the local authority incurred in carrying out that notice.
F.13. There is no right of appeal against a decision by the local authority to carry out a work or demolition notice. A person can only appeal where a local authority intends to include additional works when enforcing the notice. But there is no right of appeal if the local authority does not have to give notice of this additional work (see Chapter 4 for more information on enforcement).
F.14. People who are affected by a Housing Renewal Area ( HRA) can appeal against the work or demolition notice which the local authority issues when implementing the HRA. Local authorities should ensure that they give all owners and other interested parties the opportunity to contribute their views both before and during the consultation phase of designating an HRA.
Outcomes of appeal and role of the sheriff
s65 (1)
F.15. Where a person makes an appeal, the sheriff can:
- confirm the decision which the local authority made, along with any consequence of that (for example, a maintenance order if the appeal was against the decision to serve it);
- quash the decision, or
- make any other decision as he or she thinks fit.
s65 (6)
F.16. The local authority or the person can appeal the sheriff's decision to the sheriff principal if it is in relation to a decision made in respect of work or demolition notices (as paragraph F.6). They must do this within 21 days of the sheriff's determination. The decision of the sheriff principal in such cases is final.
s65 (5)
F.17. If neither the local authority nor person appeals, the sheriff's decision is final.
s66 (4)
F.18. The sheriff has discretion as to what level of expense to award to whom. Similarly, the sheriff principal may make such an order in relation to any subsequent appeal.
Effect of lodging an appeal
s63 (2), (3)(a)
F.19. If a person appeals the decision to serve a work or demolition notice, the notice will not take effect until the person or authority abandons the appeal, or it is finally determined.
s63 (8) (b)
F.20. The appeal is finally determined on the last date on which the local authority or recipient of the notice can appeal the sheriff's determination to the sheriff principal. Or if the authority or person makes such an appeal, it will be finally determined on the date when the authority or person abandons the appeal or the sheriff principal determines it.
F.21. The last date when the authority or person can appeal the decision is 21 days after the authority serves the notice. The only exception to this is where the sheriff agrees to hear an appeal after this date. But this can only happen if he or she set that later date before the initial 21 day period was up.
s63 (3) (b)
F.22. The notice will have effect again from the day on which the appeal is abandoned or from when the decision is finally determined by confirming it.
s63 (7)
F.23. The local authority should not undertake any work or proceedings until:
- the last date on which the decision to make it may be appealed; or
- the date on which the appeal is abandoned or finally determined (by confirming the decision) where the authority or person has made an appeal.
Summary of appeal process - work and demolition notices
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