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Volume 3
Annex D Appeals
D.1. Local authorities can require owners to prepare and implement a maintenance plan for up to a five year period. The Act gives owners certain rights of appeal against various stages in this process.
D.2. 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.
D.3. 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 it serves notice of the decisions against which they can appeal.
Rights of appeal
D.4. There are rights of appeal against a number of decisions which the local authority can make when using its powers under Chapter 6 of the Act.
s64 (1)
D.5. Those decisions are:
- to serve a maintenance order;
- to approve or devise a maintenance plan; or
- to vary or revoke a maintenance plan.
D.6. The local authority must serve notice of each of these decisions (see also Chapters 2 and 3 for more information on maintenance orders and plans). Annex C provides further information on the requirements for serving documents.
s64 (3)
D.7. Only the person who the local authority served the notice on has the right to appeal.
s64(1) s66(1)
D.8. 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 C for more information on when a document is served).
s64 (7)
D.9. But the sheriff can decide to hear the appeal after the 21 day period, if the authority or person can show cause for this.
D.10. A person cannot approach the Ombudsman to investigate any of the decisions which D.5 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.
Outcomes of appeal and role of the sheriff
s65 (1)
D.11. 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.
There is no right to appeal the sheriff's decision in relation to maintenance powers. In these cases
s65 (5)
D.12. the sheriff's decision is final.
s66 (4)
D.13. The sheriff has discretion as to what level of expense to award to whom.
Effect of lodging an appeal
s63 (2), (3)(a)
D.14. If a person appeals the decision to serve a maintenance order and maintenance plan, the notice will not take effect until the person or authority abandons the appeal, or it is finally determined.
s63 (8) (a)
D.15. For appeals against decisions in relation to maintenance powers, the appeal is finally determined when the sheriff determines the appeal.
s63(9)s64(7)
D.16. 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)
D.17. 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)
D.18. 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 - maintenance powers
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