London & Clydeside Estates Ltd v Aberdeen District Council
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hailsham of St. Marylebone (Lord Chancellor),Lord Wilberforce,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Keith of Kinkel |
| Judgment Date | 08 November 1979 |
| Judgment citation (vLex) | [1979] UKHL J1108-4 |
| Court | House of Lords |
| Docket Number | No. 1. |
| Date | 08 November 1979 |
[1979] UKHL J1108-4
Lord Hailsham of St. Marylebone (Lord Chancellor)
Lord Wilberforce
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Keith of Kinkel
House of Lords
My Lords,
My task in this case is rendered considerably lighter by reason of the fact that I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Fraser of Tullybelton and Lord Keith of Kinkel. With them I agree, and accordingly I am of the opinion that this appeal should succeed, the cross appeal be dismissed, and that the Appellants should be allowed their expenses throughout these proceedings, including those of the proceedings before your Lordships' House, other than the expenses relating to the joinder of the second Defender as to which it is not now sought to disturb the order of the Second Division of the Court of Session. Nevertheless I wish to frame my own reasons for coming to this conclusion.
It will be logical to deal first with the cross appeal which seeks to reverse the interlocutors to the extent to which the Pursuers succeeded below. These interlocutors were in the terms of the first conclusion of the Pursuers' summons in these proceedings, which sought the reduction of a purported certificate by the Respondents. The appeal itself is confined to the contention that the Second Division of the Court of Session were wrong to refuse the second conclusion in the Appellants' summons after sustaining their contention that they were entitled to succeed on the first (which is the subject of the cross appeal).
The proceedings relate to three areas of ground at Scotstoun, Bridge of Don, which the Respondents or their predecessors desire to acquire for educational purposes.
On the 9th September 1974, the Appellants applied through their architects to the Respondents' predecessor authority for a Certificate of Alternative Development pursuant to section 25 of the Land Compensation (Scotland) Act 1963. The form of this certificate necessarily affects the amount of compensation payable for the acquisition, and, although this does not appear directly from the record, we were told that, independently of these proceedings, a reference to the Lands Tribunal following an agreement for sale has duly taken place and has resulted in an award in an alternative form on each of two alternative bases.
On the 22nd October 1974, and in response to the Appellants' application, the Respondents' predecessors issued what purported to be the appropriate Certificate, described in the Record as Production No. 1. But this purported certificate was admittedly defective (to use a neutral word) because, contrary to the terms of Article 3(3) of the Town and Country Planning (General Development) (Scotland) Order 1959 ( S.I. 1959 No. 1361), which is admitted to apply to the case, it did not "include a statement "in writing … of the rights of appeal to the Secretary "of State …". These rights under the relevant terms of Article 4(1) of the Order, provided for notice of appeal to be given within one month from the date of receipt of the certificate.
In the events which happened, the Appellants purported after the expiry of the time limit of one month to intimate an appeal to the Secretary of State. This they did by letter dated the 9th January 1975, (Production Numbered 3 in the record). But by letter dated the 15th January 1975, the Secretary of State declined to accept this letter as a valid appeal on the grounds that it was out of time, and adhered to this decision despite a further letter on behalf of the Appellants complaining in effect of the defective character of the Respondents' certificate.
The outcome was the raising on the 11th April 1975, of the present proceedings in which the Appellants concluded (1) for a reduction of the purported certificate of the 22nd October 1974, and (2) for a declarator that the Respondents were bound to issue an amended, or, more properly, a fresh, certificate complying with Article 3(1) of the Order, and a decree ordaining the Respondents to issue such a certificate within two months of the decree. These are the only two conclusions still alive in the proceedings before your Lordships. There was a third and alternative conclusion, now no longer effective, which resulted from a provisional view framed by the Lord Ordinary in the course of the proceedings before him. The Lord Ordinary had at first been disposed to consider that the Secretary of State was wrong to decline jurisdiction to hear the attempted appeal, but changed his mind on hearing argument for the Secretary of State who had been joined by amendment for the purposes. No point on this abortive solution remains to be decided on this appeal, the Appellants expressly refraining from pursuing the argument as to expenses raised in their Case to your Lordships' House.
In the event, the Appellants succeeded in their first conclusion (for the reduction of the purported certificate) both before the Lord Ordinary and the Second Division, and this result forms the subject of the Respondents' cross appeal. But before the Second Division the Appellants failed in their claim to the decree concluded for in their second claim for relief (the subject of the appeal itself) on the ground, as the Second Division held, that to ordain in accordance with the second conclusion would be "flying in the face" of Article 3(2) of the Development Order. This provided that the time within which the relevant certificate was to be issued by the Respondents was to be "the period of two months from the date of receipt" of the relevant application, and from this the Second Division were of opinion that the Respondents had no remaining power to issue a certificate in the form required by the second conclusion of the Appellants' summons. In passing, I should remark that the point was a novel one before the Second Division, the Respondents having conceded before the Lord Ordinary that the two conclusions stood or fell together, and having withdrawn this concession on the reclaiming motion in the Second Division.
It will be convenient to deal with the points raised in what I conceive to be their logical order rather than the order in which they were argued by the respective counsel.
On this basis, the first question for consideration is the consequence of what was admitted to be a defect in the purported certificate of 22nd October 1974, namely the failure by the predecessors of the Respondents to include in the certificate information in writing as to the Appellants' rights of appeal to the Secretary of State. Was this requirement, which has the authority of Parliament behind it, mandatory or was it in some sense directory only? I have no doubt that it was mandatory, and that the failure to include this information was fatal to the certificate. In the course of argument counsel for the Respondents candidly conceded that the only purpose of the requirement was to inform the applicant of his rights of appeal, including the time limit within which they should be exercised. The present Appellants aver that they were misled by this defect and that it was as a result of this that their appeal was out of time. The averment has never been put to the proof, and one of the Respondents' alternative arguments was that, in the event of otherwise total failure, the Appellants should be put to the proof of this. But in my view this argument is without foundation. The validity of the certificate itself is in question, and if, as I believe, the requirement is mandatory, the certificate falls independently of whether the Appellants were in fact misled. I find it impossible to accept that a requirement by an instrument of statutory force designed for the very purpose of compelling a public authority to inform the subject of his legal rights can be treated as simply regulatory if the requirement is not complied with. If I required authority for this proposition I would refer to Agricultural, Horticultural and Forestry Industry Training Board v. Kent [1970] 2 Q.B. 19 C.A., Rayner v. Stepney Corporation [1911] 2 Ch. 312, and Brayhead (Ascot) Ltd v. Berkshire C.C [1964] 2 Q.B. 303, D.C. notwithstanding that it relied on Edwick v. Sunbury U.D.C [1962] 1 Q.B. 229 which was disapproved in James v. Secretary of State for Wales [1968] A.C. 409, which was decided on an argument irrelevant to the present appeal. However I am content to assert a general principle to the effect that where Parliament prescribes that an authority with compulsory powers should inform the subject of his right to question those powers, prima facie the requirement must be treated as mandatory. For the reasons which follow, however, this does not dispose the matter in the Appellants' favour.
If the requirement that the subject should be informed of his legal rights was mandatory, what follows? The Respondents attempted, as I thought, at one time, to argue that it thereupon became a nullity, and that therefore a decree of reduction was inappropriate because there was nothing upon which it could operate. But I do not accept this argument. The certificate was effective until it was struck down by a competent authority (cf: Brayhead (Ascot) Ltd. v. Berkshire C.C supra; James v. Secretary of State for Wales, supra). In the course of argument I ventured to draw attention to the passage at p.445 of the opinion of the Judicial Committee in Calvin v. Can [1979] 2 All E.R. 440 in which Lord Wilberforce says of a contention that a decision of the stewards of the Australian Jockey Club was void for breach of natural...
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