London & Clydeside Estates Ltd v Aberdeen City Council and another

Compensation for compulsory acquisition–Certificate of alternative development–Certificate issued by the local planning authority failed to include the statement of the applicants’ rights of appeal required by the relevant statutory instrument–Effect of omission–Certificate ‘vitiated’ by omission, as requirement was mandatory and not merely directory–Certificate not, however, a nullity, so that it could not be alleged that the position was as if no certificate had ever been issued–Authority’s argument that applicants were out of time for appealing, because the time limit applicable in the failure to issue cases had passed, accordingly rejected by House–Other arguments by authority rejected–Lord Chancellor’s comment on ‘the rapidly developing jurisprudence of administrative law’–Authority ordered to issue fresh certificate complying with the statutory provisions This was an appeal by London & Clydeside Estates Ltd and a cross-appeal by Aberdeen City Council against a decision of the Second Division of the Inner House of the Court of Session in Scotland. The Second Division on an appeal from the Lord Ordinary (Lord Dunpark) decided that a purported certificate of alternative development issued by the council as local planning authority was invalid and should be reduced. The Second Division, however, refused a decree ordering the council to issue a fresh certificate, on the ground that such an issue was contrary to the statutory provisions. London & Clydeside Estates Ltd appealed against this refusal and the council cross-appealed against the decision to reduce the certificate. The land which was the subject of the litigation consisted of three sites at Scotstoun, Bridge of Don, Grampian. The statutory provisions mentioned by Lord Hailsham are in substance the same as those applicable to England and Wales. A M Morison QC and A G C McGregor (instructed by Stephenson Harwood, agents for Biggart, Baillie & Gifford WS, of Edinburgh) appeared for the appellants; M S R Bruce QC and J A Cameron (instructed by Martin & Co, agents for Shepherd & Wedderburn WS, Edinburgh) for the respondents. In his speech, LORD HAILSHAM OF ST MARYLEBONE LC said: 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 the appellants 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 September 9 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 for Scotland 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 [LTS/APP/3/59 dated September 24 1975; W A Elliott QC and Wm Hall FRICS]. On October 22 1974, and in response to the appellants’ application, the respondents’ predecessors issued what purported to be the appropriate certificate. 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 (SI 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 January 9 1975. But by letter dated January 15 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 April 11 1975, of the present proceedings in which the appellants concluded (1) for a reduction of the purported certificate of October 22 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 procedings 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 October 22 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 QB 19 (CA), Rayner v Stepney Corporation [1911] 2 Ch 312, and Brayhead (Ascot) Ltd v Berkshire CC [1964] 2 QB 303 (DC) notwithstanding that it relied on Edwick v Sunbury UDC [1962] 1 QB 229 which was disapproved in James v Secretary of State for Wales [1968] AC 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 CC 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 Carr [1979] 2 All ER 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 justice: This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships’ opinion would be, if it became necessary to fix on one or other of these expressions, that a decision made contrary to natural justice is void but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal. The subject-matter of that case was wholly different from the present, but my opinion is that the thinking behind it is applicable. The certificate was vitiated in the sense that it failed to comply with a mandatory requirement. But the subject could not safely disregard it as not having been issued. Had he done so, he might well have fallen into the very trap of losing his right to complain of the vitiating factor, which has caught other subjects in the reported decisions, and, in my view, he was not only wise but bound to seek a decree of reduction or some other appropriate remedy striking down the offending certificate. A similar line of reasoning disposes of the next contention of the respondents, also rejected in the Second Division, to the effect that, if the certificate is vitiated, the position is the same as if no certificate had been issued and that section 26(4) of the Land Compensation (Scotland) Act 1963 then operates in such a way that, no certificate having been issued under section 25, the preceding provisions of the section as to appeals should apply at the expiry of the prescribed period ‘as if’ the local planning authority had issued a certificate ‘containing such a statement as is mentioned in’ section 25(4)(b) of the Act. The effect of this read with articles 3 and 4 of the order would have put the appellants out of time for appeal on the expiry of one month after the expiry of the prescribed (two months) for the due issue of the certificate by the respondents. The fallacy in this argument lies in the assumption (for it is no more) that the issue by an authority of a certificate vitiated by failure to comply with a mandatory requirement is the same thing as the failure by that authority to issue any purported certificate at all. The respondents were at pains to argue that the issue by the authority of a certificate vitiated for want of compliance with a mandatory requirement was a casus omissus from the Act and that, in this context, the law of Scotland (unlike the law of England) afforded no remedy at all unless it be by the invocation of the jurisdiction peculiar to Scottish law, which goes by the imposing name of ‘nobile officium.’  I was utterly unpersuaded by this argument or that there was any difference between Scottish and English law in this respect, and my want of belief is reinforced by what my two learned and noble friends, Lord Fraser of Tullybelton and Lord Keith of Kinkel, have to say about the more arcane aspects of ‘nobile officium.’  In my opinion, in both jurisdictions the law is the same. The first task is to construe the statute, and ask the question whether the duty in question is mandatory or directory. If it be mandatory, the second task is to ask what remedy is available for non-compliance. If the statute specifies the remedy, well and good. If it is silent, the ordinary remedies available in each jurisdiction, eg proceedings for declaration or prerogative order in England, summons for declarator or reduction in Scotland, should be pursued as appropriate. There is no room for a casus omissus in either case. Counsel for the appellants called in aid of this part of the case the authority of Maitland 1961 161 SC 291, but I do not think authority is required for a proposition to my mind so evident on general principle. More persuasive, in some ways, was the argument for the respondents that it was an odd sort of statute which first provided that an applicant should look at the Act in order to ascertain his right under section 25 (now amended and printed as a Keeling schedule in Schedule 9 to the Community Land Act 1975) to make an application and then, if no certificate were forthcoming, look at section 26(4) of the Act and the order in order to note and exercise his right of appeal but, as regards a purported certificate failing to apprise him of his rights of appeal (which by that time one would have supposed him to know), that he should be in the position to rely on the invalidity of the certificate in the way he now seeks to do. That there is a certain paradox in this I do not deny. But I do not think we are entitled to play fast and loose with statutory requirements designed to inform the subject as to his legal rights against an authority possessed of compulsory powers. There would be an even greater paradox in allowing an acquiring or planning authority first to flout such a requirement and then to be heard to say that its non-compliance had no effect on the validity of its legal documents. I do not think that prescriptions for the benefit of the subject are so to be disregarded. At this stage I should notice a contention on the part of the respondents, which, though, as will be seen, I partly agree with it, does not seem to me to be relevant to the disposal of the cross-appeal. The contention was that in the categorisation of statutory requirements into ‘mandatory’ and ‘directory,’ there was a subdivision of the category ‘directory’ into two classes composed (i) of those directory requirements ‘substantial compliance’ with which satisfied the requirement to the point at which a minor defect of trivial irregularity could be ignored by the court and (ii) of those requirements so purely regulatory in character that failure to comply could in no circumstances affect the validity of what was done. The contention of the respondents was that, even on the assumption against themselves that the requirement of the order was that the certificate should include a notification of the appellants’ rights to appeal to the Secretary of State, the rest of the certificate was so exactly in accordance with the provisions of the order that the remaining defect could be safely ignored. I do not consider that this argument assists the respondents in the present appeal. I have already held that the requirement relating to notification of the appellants’ rights of appeal was mandatory and not directory in either sense contended for by the respondents. But on the assumption that I am wrong about this, a total failure to comply with a significant part of a requirement cannot in any circumstances be regarded as ‘substantial compliance’ with the total requirement in such a way as to bring the respondents’ contention into effect. Nevertheless I wish to examine the contention itself. In this appeal we are in the field of the rapidly developing jurisprudence of administrative law, and we are considering the effect of non-compliance by a statutory authority with the statutory requirements affecting the discharge of one of its functions. In the reported decisions there is much language presupposing the existence of stark categories such as ‘mandatory’ and ‘directory,’ ‘void’ and ‘voidable,’ a ‘nullity,’ and ‘purely regulatory.’  Such language is useful; indeed, in the course of this opinion I have used some of it myself. But I wish to say that I am not at all clear that the language itself may not be misleading in so far as it may be supposed to present a court with the necessity of fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments, compartments which in some cases (eg ‘void’ and ‘voidable’) are borrowed from the language of contract or status, and are not easily fitted to the requirements of administrative law. When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like ‘mandatory,’ ‘directory,’ ‘void,’ ‘voidable,’ ‘nullity’ and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purpose of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood, in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind. There was only one other argument for the respondents on their cross-appeal that I need notice. This was that the requirement not complied with was separable from the rest of the requirements as to the certificate. I do not read it as such. It was an integral part of the requirement that the certificate should ‘include’ a written notification of the rights of appeal. Once the cross-appeal is disposed of, I do not find much difficulty in stating my reasons for allowing the appeal. In my view the Second Division only refused the second conclusion of the summons because in their view of article 3(2) of the order the respondents had no power to issue the new certificate demanded. Again, I do not so read the order. The duty under section 25 is a continuing duty. The fact that article 3(2) of the order is not complied with in time does not put an end to the obligation of the authority to comply. That this is so is apparent from a construction of section 25 (as amended) in the light of section 26, which expressly allows the parties to agree an extension of time, which would not be possible if an extension of time was ultra vires the authority. In my view, therefore, the appeal succeeds, and the cross-appeal fails with the results indicated in the first paragraphs of this opinion. LORD FRASER OF TULLYBELTON and LORD KEITH OF KINKEL delivered concurring speeches and LORD WILBERFORCE and LORD RUSSELL OF KILLOWEN agreed.