LONDON AND CLYDESIDE ESTATES LIMITED
(formerly London and Clydeside Properties Limited)
(Original Appellants and Cross Respondents)
v.
DISTRICT COUNCIL OF THE CITY OF ABERDEEN AND ANOTHER
(Original Respondents and Cross Appellants) (Scotland)
Lord Hailsham of St Marylebone (Lord Chancellor)
Lord Wilberforce
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Keith of Kinkel
Lord Hailsham of St. Marylebone (Lord Chancellor)
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
2
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
3
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.
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 (2 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
Scotish 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, e.g., 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. Council for the Appellants called in
aid of this part of the case the authority of Maitland 161 S.C. 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
4
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 and even greater paradox in allowing an acquiring or planning
authority first to flout such a requirement and then 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) 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 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 (e.g. “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
5
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 purposes 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 Wilberforce
My Lords,
I have had the benefit of reading in advance the opinions of the noble and learned
Lord on the Woolsack and my noble and learned friend Lord Keith of Kinkel. I agree
with them and with the conclusions proposed.
Lord Fraser of Tullybelton
My Lords,
This appeal raises the question whether a certificate of alternative development issued
by a local planning authority which was defective in form is valid or invalid and, if
invalid, what remedy is available to the party who applied for it. The defect was that the
certificate did not include a statement of the applicants’ rights of appeal to the Secretary
of State as required by the relevant statutory instrument. The appellants (pursuers in
the action), on whose behalf the certificate was applied for by their architects, maintain
that the defective certificate is invalid. The respondents, who are the local planning
authority, maintain that the requirement that the certificate shall include a statement on
the rights of appeal is not mandatory but only directory, and that the failure to comply
with it does not affect the validity of the certificate that was issued. The action has two
conclusions still alive, apart from one for expenses. The first conclusion is for reduction
of the defective certificate. The second is for decree of declarator that the respondents
are bound to issue a fresh certificate [sc. in proper form] and for decree ordaining the
respondents to issue such a certificate within two months after the date of decree. The
6
Lord Ordinary, Lord Dunpark, granted decree in terms of both conclusions. The
Second Division granted decree of reduction, but refused decree in terms of the second
conclusion. The respondents have cross-appealed against the interlocutor of the Second
Division, in so far as it granted decree of reduction, and their cross-appeal is opposed by
the appellants.
All the facts, which, in my opinion, are relevant are agreed. There is a dispute on one
matter of fact but, for reasons to be mentioned later, I do not consider that the matter is
material. The appellants are the owners of three areas of ground at Scotstoun, Bridge of
Don, Aberdeenshire, which Aberdeen County Council, who were then the Education
Authority, proposed to acquire compulsorily for educational purposes. On 9th
September 1974 a firm of chartered architects applied on behalf of the appellants to
Aberdeen County Council (in their capacity as local planning authority) for a certificate
of alternative development under section 25 of the Land Compensation (Scotland) Act
1963. The respondents are the statutory successors of Aberdeen County Council as
local planning authority. A certificate of alternative development governs the amount of
compensation payable to the appellants for the compulsory acquisition of their land.
The application specified “residential with associated commercial purposes” as a class
of development which appeared to the appellants to be appropriate for these areas of
land. If the local planning authority had issued a certificate that planning permission for
that purpose might reasonably have been expected to be granted, compensation would
have been assessed on the assumption that it would have been granted—section 23(5).
(The assumption has been changed by the Community Land Act 1975, Schedule 10,
para. 5, but the change does not affect this appeal). On 22nd October 1974 Aberdeen
County Council issued a certificate stating that “in the opinion of the local planning
authority . . .planning permission could not reasonably be expected to be granted
” for any development other than that proposed to be carried out by the acquiring
” authority” (which may conveniently be called a “negative certificate”) and stating the
reason for that opinion. But the certificate did not include any statement of the rights of
appeal to the Secretary of State as it should have done in order to comply with the Town
and Country Planning (General Development) (Scotland) Order 1959 (S.I. 1959 No.
1361) Article 3(3) which provides as follows:
” (3) If a local planning authority issue a certificate otherwise than for the class or
” classes of development specified in the application made to them, or contrary to
” representations in writing made to them by a party directly concerned, they shall
” in that certificate include a statement in writing of their reasons for so doing and
” of the rights of appeal to the Secretary of State given by section 6 and this order.”
The reference to “section 6” is to a section of the Town and Country Planning
(Scotland) Act 1959 which was repealed and superseded by section 26 of the Land
Compensation (Scotland) Act 1963. The order was continued in force under section
47(1) of the 1963 Act.
The certificate was received by the appellants’ architects on 24th October 1974. On
9th January 1975 the appellants’ solicitors wrote to the Scottish Development
Department intimating an appeal against the certificate on its merits, on grounds stated
in the letter. The intimation was of course more than one month (actually about two
and a half months) after the receipt of the certificate and was therefore out of time under
Article 4(1) of the Regulations which provides:
“4.(1) The time for giving notice of an appeal under section 6 shall be the period
” of one month from the date of receipt of the certificate… “.
On 15th January 1975 the Scottish Development Department replied stating that notice
of appeal had to be given within one month and that the Secretary of State had no power
to extend the period. They added: “As the certificate against which you wish to appeal
” was issued on 22nd October 1974, the Secretary of State regrets that he is unable to
” accept your letter as a valid appeal.” On 10th February 1975 the appellants’ solicitors
wrote again to the Scottish Development Department saying that the purported
certificate had omitted to advise their clients of their rights of appeal to the Secretary of
State and that it was therefore defective as a certificate. They requested that, rather than
adopting the cumbersome and expensive procedure of insisting on a fresh certificate, to
be followed by an appeal, the Secretary of State should allow the notice of appeal in
their letter of 9th January to stand. On 6th March 1975 the Scottish Development
Department replied that “the Secretary of State has no power to accept a late appeal”
and suggested that the appellants take up the matter with the County Council. The
solicitors then wrote to the County Clerk on 14th March 1975 pointing out the defect in
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the certificate and asking for a “certificate in proper form” to be issued as soon as
possible. The County Council refused to issue a fresh certificate and on 16th April 1975
the appellants raised this action concluding for reduction and declarator. Aberdeen
County Council were called as the first defenders (now succeeded by the present
appellants). The Secretary of State for Scotland was called as second defender for any
interest he might have.
The action came before Lord Dunpark as Lord Ordinary in procedure roll for the
first time in January 1977 and by interlocutor dated 24th February 1977 (not 24th
January 1977 as stated in the interlocutor sheet in appendix 1.) he found in favour of the
appellants. His Lordship, in a laudable attempt to short circuit procedure, made a
finding that:
” The notice of appeal given by letter dated 9th January 1975″ (from the
” [appellants] solicitors to the second named defender) “was a valid notice of
” appeal.”
In his opinion the Lord Ordinary expressed the hope that the Secretary of State would
take his finding as equivalent to a decree of declarator that the appellants’ notice of
appeal was timeous and valid in the circumstances and stated that he would certainly
have granted decree to that effect if there had been a conclusion for it. At that stage the
Secretary of State had not lodged defences. Aberdeen County Council reclaimed against
the Lord Ordinary’s interlocutor of 24th February 1977 and the appellants amended
the closed record by adding a conclusion for declarator in the terms which the Lord
Ordinary had said he would have upheld. The Secretary of State then lodged defences
and the case was remitted by the Second Division to the Lord Ordinary to consider it
further.
At a further hearing the Lord Ordinary was persuaded by counsel for the Secretary of
State that his finding made on 24th February 1977 was wrong and on 15th January 1978
he refused to grant decree of declarator in terms of the third conclusion (the one that
had been added by amendment) and dismissed the action so far as directed against the
Secretary of State. That part of his decision has been accepted by all parties and his
original finding was not supported by any party before the Second Division. The Lord
Ordinary granted decree of reduction in terms of the first conclusion. He also granted
decree of declarator and ordaining the defenders to issue an amended certificate in
terms of the second conclusion; in this part of his interlocutor the Lord Ordinary
proceeded upon a concession made by senior counsel then appearing for the
respondents to the effect that, if decree in terms of the first conclusion was granted then
decree in terms of the second conclusion should follow. That concession was withdrawn
when the case came before the Second Division. The question of whether or not the
concession was rightly made is now in substance the question raised in this appeal. The
Second Division upheld the Lord Ordinary’s interlocutor in granting decree of
reduction, but they recalled the interlocutor in so far as it granted decree in terms of the
second conclusion. They held that the time limit for issuing a certificate of alternative
development had expired and that decree in terms of the second conclusion would be
incompetent. The result is that matters are left in a state which is clearly unsatisfactory.
The defective certificate has been reduced, but nothing has been put in its place, and no
order has been pronounced requiring the respondents to issue a fresh or amended
certificate. Their Lordships of the Second Division evidently recognised that the
position was unsatisfactory and in their opinion they said:
” It may be, and on this we express no view, that the pursuers have some other
” remedy against the first defenders for issuing the certificate which has now to be
” reduced.”
But they gave no indication of what other remedy there might be.
It will be convenient to consider first the cross-appeal—that is, the respondents’
appeal against the decree reducing the certificate of 22nd October 1974. Logically the
first point to consider is whether the provision in article 3(3) of the 1959 order to the
effect that the local planning authority “shall in that certificate include a statement in
writing of … the rights of appeal” is mandatory or not. I do not think that literal
compliance with the provision is mandatory; for example, if a statement of the rights of
appeal had not been “included” in the certificate but had been sent with it in a separate
sheet, that would in my opinion have been substantial compliance and would have been
sufficient. But here there was no compliance at all with the provision. The purpose of
the statement required by article 3(3) clearly is to inform the applicant first that he has a
right of appeal and secondly of the time in which the right has to be exercised. These are
8
matters of importance to an applicant and Parliament, acting through the Secretary of
State, has considered their importance to be such that they ought to be expressly
brought to the notice of an applicant. Failure to do so cannot in my opinion be treated
as if it were a mere technicality or a procedural irregularity which might be overlooked.
The omission in this case was similar to, but more serious than, the omission of the
address for the service of a notice of appeal which was held by the Court of Appeal to
invalidate an assessment notice in Agricultural, Etc. Training Board v. Kent [1970] 2
Q.B.19. It was much more serious than the omission in Rae v. Davidson 1954 S.C. 361,
which was described by the Lord Justice Clerk as “the merest technicality”, but which
was held nevertheless to invalidate a notice to remove from a farm because the statutory
requirements for such a notice had not been exactly complied with. I agree with both
those decisions, and I have no doubt that the effect of the omission in this case was to
make the certificate invalid in the sense that it cannot stand, if challenged by the
appellants. It is not a complete nullity—for example it could have been appealed against
by an appeal taken timeously—and it exists until it is reduced, or set aside in some way.
I do not think it is possible to treat the certificate as consisting of two parts, capable of
being severed from one another, one part being the actual certificate and the other being
the statement of the rights of appeal. Both parts are required by the order and both are
of substantial importance. The omission of either part is therefore fatal to the validity of
the whole.
Counsel for the respondents argued that there were three reasons why the inclusion
of a statement of rights of appeal to the Secretary of State was not mandatory. The first
was that the notice was not of great assistance to the applicant, because receipt of the
certificate would not be the first he knew of the matter. He must have applied for the
certificate, and therefore he must already have read the order of 1959. I agree that he
must have read the order, but in my opinion that does not mean that a statement of
these rights of appeal, even if it is only a reminder of what he had already read, is not of
value to him. The second reason was that the obligation to include the statement was
imposed only by the order of 1959 and not by the statute itself, whereas the scheme of
the legislation was for all the essential requirements of the certificate to be laid down in
the Act itself. In my opinion it is not possible to distinguish in this way between
essential and non-essential requirements; any such distinction must depend on the
importance of the particular requirements and not upon the machinery by which they
are specified. The third reason was the only one that is in my opinion entitled to some
weight. It was based on the provisions of section 26(4) of the Act to the effect that if, at
the expiry of the period of two months within which the certificate is to be issued, no
certificate has in fact been issued, the provisions for appeal shall apply as if a negative
certificate had been issed — i.e. the applicant can appeal within one further month. In
circumstances where that provision has to be applied, the applicant ex hypothesi would
not have the benefit of a statement of his rights of appeal but he would have to discover
them for himself. How then, it was asked rhetorically, could the inclusion of such a
statement in a certificate, when one was issued, be essential? I see the force of the
argument but in my opinion it cannot prevail against the express provision in the order
made under the authority of Parliament.
The appellants have averred that as a result of the failure of the County Council to
comply with article 3(3), they did not appreciate that notice of appeal required to be
given within one month of receipt of the certificate and that that was the reason for the
appeal being out of time. These averments are denied by the respondents and their
counsel argued that in the event of the appeal succeeding otherwise they should be
remitted for proof before the Lord Ordinary. In my opinion that is unnecessary and the
averments themselves are irrelevant. The validity of the certificate is not in my opinion
dependent on whether the appellants were actually prejudiced by it or not. This is the
single disputed matter of fact to which I referred above.
The next question is whether reduction of the certificate is the appropriate remedy in
the circumstances. Counsel for the respondents argued that whatever the appropriate
remedy might be, it certainly was not reduction, because, he said, the nobile officium of
the Court of Session was available to provide for what was a casus improvisus. The
argument as I understood it was that a casus improvisus arose in this way. It is now too
late for the appellants to make a fresh or amended application for a certificate because a
reference has been made to the Lands Tribunal for Scotland, (which has replaced the
Official Arbiter) to assess compensation — see section 25(2) of the 1963 Act. We were
told that the Lands Tribunal had, at the request of both parties, made alternative
assessments on different assumptions. I agree that it is too late for a fresh application. It
9
is also too late, so it is said, for the respondents to issue a fresh or amended certificate
because a certificate has to be issued within two months from the date of application
(unless the period is extended by agreement) and after the expiry of the two months’
period the local planning authority is functus and cannot issue a certificate. A complete
impasse therefore arises comparable to that which existed in the case of Maitland,
Petitioner, 1961 S.C.291 when a licensing court could not be reconvened to pronounce
an order that it had omitted to make per incuriam. The Court of Session resolved the
impasse by an exercise of its nobile officium. For reasons that I shall explain, I do not
agree that it is too late for the respondents to issue a proper certificate, but, even
assuming that it is, I am of opinion that the argument is misconceived. The fact that
Parliament has not provided for the legal consequences to follow from a failure to carry
out the statutory procedure does not give rise to a causes improvisus. The consequences
of such failure have to be ascertained according to the general rules of law. They may
include a right to recover damages, or to have a document reduced, or to obtain a decree
of declarator or some other redress but there is no impasse of the kind that has hitherto
been regarded as suitable for solution by an exercise of the nobile officium. That is an
exceptional power and the court “does not view with favour its indefinite extension.”
See McClaren on Court of Session Practice p.101. Its proper use as the Lord President
pointed out in Maitland, supra, is “to enable justice to be done where, per incuriam,
some formal step [my italics] has been omitted” but it cannot be invoked “even by
agreement of all parties interested, to enable the court to supplement the statutory
procedure by what would, in effect, be an amendment of a statute.” The proposal that
the nobile officium should be invoked in the present case to extend the period either for
issuing the certificate or for appealing against the certificate assumes that whichever
period is to be extended is one which has been fixed by the statute or the order and
which has expired. Otherwise no extension would be necessary. But an exercise of the
power for such a purpose would be in order to get round the Act or the order and thus in
effect to amend it. That would not be a proper exercise of the power.
I am therefore of opinion that the Lord Ordinary and the Second Division were well
founded in granting decree of reduction of the defective certificate, and I would dismiss
the cross-appeal.
Turning now to the original appeal, the question is whether the issue of a fresh or
amended certificate of alternative development now, more than five years after the
application made on 9th September 1974, would be contrary to the provisions of the
Act of 1963 and the order of 1959. The second conclusion in its original form was for a
“fresh” conclusion, but for some reason it was amended while the case was before the
Second Division by substituting “amended” for “fresh”. I do not regard the difference
as important, but I consider that “fresh” is the more appropriate word and I would
allow an amendment to restore it to the second conclusion. The provision of the Act
which is directly relevant to this question is in subsection (4) of section 25, as follows:—
” (4) Where an application is made to the local planning authority for a
” certificate under this section in respect of an interest in land, the local planning
” authority shall, not earlier than 21 days after the date [on which a copy of the
” application has been or will be served upon the other party] issue to the
” applicant a certificate stating that, in the opinion of the local planning authority
” in respect of the land in question, either…”
[Then follow two alternatives, the second of which is a negative certificate such as the
purported certificate issued in this case].
Two points in subsection (4) are important for the present purpose. First, it imposes a
duty upon the local planning authority to issue a certificate under the section when
application is made for one. Second, it prescribes a date “not earlier” on which a
certificate is to be issued. The reason, no doubt, is to allow time for the opposing party to
make representations to the authority. But neither in subsection 25(4) nor elsewhere in
the Act itself is any date prescribed after which a certificate may not be issued. The Act
does provide for a time to be prescribed by a “development order” within which a
certificate is to be issued, see section 28.
” (b) for prescribing the manner in which notices of appeals under section 26 of
” this Act are to be given, and the time for giving any such notice;”
A “development order” is defined by section 45(1) to mean an order under section 11(1)
of the Town and Country Planning (Scotland) Act 1947 and it therefore includes the
order of 1959.
10
The time for the issue of a certificate of alternative development is prescribed by article
3(2) of the order of 1959, which is as follows:
” (2) The time within which a certificate is to be issued by a local
” planning authority shall, subject to the provisions of subsection 4 of
” [section 26 of the 1963 Act] be the period of two months from the date of
” receipt of such an application by them.”
It was argued for the respondents that the effect of article 3(2) was to fix a maximum
period of two months (subject to extension by agreement under section 26(4) of the Act)
for issuing a certificate and that after the end of that period no certificate could lawfully
be issued. The issue of a certificate after that would be, in the words of the Second
Division, “in the teeth of the statutory provisions”. I am unable to accept that
submission. One starts with the fact that the local planning authority is under a duty to
issue a certificate—section 25(4). The purpose of article 3(2) is in my opinion to direct
the local planning authority to perform its duty within the period of two months (unless
extended by agreement) and that is a provision primarily in the interests of the party
who has applied for the certificate. But it seems to me wrong and, if I may say so
without disrespect to those who think otherwise, almost perverse, to read article 3(2) as
implying that if the local planning authority can stall and avoid performing its duty for
two months, the duty is then to fly off altogether. Yet that would be the result of the
respondents’ argument. On the contrary, I am of opinion that the local planning
authority remains under a continuing duty to issue a valid certificate even though it may
have failed to do so within two months. Mere delay cannot absolve it from its duty. The
expiry of the two months’ period from receipt of the application is not, on any view, an
absolute bar to issue of a certificate because the period can be extended by
agreement—see section 26(4). Moreover, and this is a point of importance, an extension
can be agreed upon “at any time”. In my opinion those words mean at any time either
during the period of two months or after the end of the period, and they are a positive
indication that the power and duty of the local planning authority to issue a certificate
do not cease at the end of the period. The subsequent provision of section 26(4) to the
effect that if no certificate has been issued by the local planning authority within the
two-month period the provisions relating to appeal shall apply “as if” a negative
certificate had been issued gives the applicant a right of appeal, but it does not include or
imply a provision that if the applicant does not avail himself of his right of appeal, the
certificate cannot be issued after the end of the two-month period. In my opinion,
therefore, the Second Division was in error in thinking that it would be incompetent for
them now to ordain the respondents to issue a fresh or amended certificate; but for their
having taken that view, I think they would have pronounced decree in terms of the
second conclusion.
I would allow the appeal, recall the interlocutor of the Second Division dated 26th
January 1979 so far as it refused to grant decree in terms of the second conclusion of the
summons; sustain the second and third pleas in law for the appellants, and refuse the
respondents’ cross-appeal. The appellants should have the costs of the appeal in this
House and their expenses in the Court of Session except that, as Mr. Morison conceded,
they are not entitled to relief against the respondents for the expenses for which the
appellants have been found liable to the second defender.
Lord Russell of Killowen
My Lords,
I have had the advantage of reading in draft the opinion to be delivered by my noble
and learned friend Lord Keith of Kinkel. I agree with it and with the order proposed by
him.
Lord Keith of Kinkel
My Lords,
In 1974 Aberdeen County Council, the respondents’ predecessors as local authority
for the area in question, were proposing to acquire for educational purposes three sites
owned by the appellants at Scotstoun, Bridge of Don. Aberdeen County Council were
an authority possessing powers of compulsory purchase. On 9th September 1974 a firm
of architects acting for the appellants applied to the council in its capacity as local
planning authority for a certificate of alternative development under the provisions of
11
section 25 of the Land Compensation (Scotland) Act 1963. It is unnecessary to go into
the details of these provisions. Their effect, in outline, is that where an authority
possessing compulsory purchase powers proposes to acquire an interest in land, either
the authority or the owner of the interest may (except in certain cases which do not
include the present one) apply to the local planning authority for what may
conveniently be called a certificate of appropriate alternative development. The
application is to be served upon the other party, and (by subsection (4)), the local
planning authority is required, not earlier than twenty-one days after the date of service,
to issue to the applicant a certificate stating that, in the opinion of that authority, either
(a) planning permission for development of one or more classes therein specified might
reasonably be expected to be granted, or (b) planning permission could not reasonably
be expected to be granted for any development other than that proposed to be carried
out by the acquiring authority.
By virtue of sections 22(4) and 23(5) of the Act, the terms of a certificate issued under
section 25 may affect very materially the amount of compensation to be paid for
acquisition of the relevant interest in land. So section 26 provides for an appeal to the
Secretary of State for Scotland against such a certificate by the person entitled to the
relevant interest in land or by the acquiring authority. The Secretary of State is required
on appeal to him to consider the matter de novo, and, if either party so desires, to afford
the parties and also the local planning authority an opportunity of appearing and being
heard before a person appointed by him. Subsection (4) is of some materiality and must
be quoted in full:
” Where an application is made for a certificate under section 25 of this Act, and at
” the expiry of the time prescribed by a development order for the issue thereof
” (or, if an extended period is at any time agreed upon in writing by the parties
” directly concerned and the local planning authority, at the end of that period) no
” certificate has been issued by the local planning authority in accordance with
” that section, the preceding provisions of this section shall apply as if the local
” planning authority had issued such a certificate containing such a statement as is
” mentioned in subsection (4)(b) of that section.”
Section 28 of the Act deals with the making by development order of provisions
regulating inter alia the making of applications under section 25 and appeals under
section 26, in particular prescribing the time within which a certificate is required to be
issued under the former section and the time for giving notice of appeal under the latter.
Prior to the coming into force of the 1963 Act, the Secretary of State for Scotland had
made, under the corresponding powers contained in the Town and Country Planning
(Scotland) Act 1959, the Town and Country Planning (General Development)
(Scotland) Order 1959. It was common ground that this fell to be treated at the material
time as having been made by virtue of the powers of the 1963 Act. The provisions of the
order relevant for present purposes, read with the substitution of appropriate references
to the 1963 Act for references to the 1959 Act, are as follows:—
” 3(2) The time within which a certificate is to be issued by a local planning
” authority shall, subject to the provisions of subsection (4) of section 25, be the
” period of two months from the date of receipt of such an application by them.
” (3) If a local planning authority issue a certificate otherwise than for the class or
” classes of development specified in the application made to them, or contrary to
” representations in writing made to them by a party directly concerned, they shall
” in that certificate include a statement in writing of their reasons for so doing and
” of the rights of appeal to the Secretary of State given by section 26 and this
” order…
” 4(1) The time for giving notice of an appeal under section 26 shall be the period
” of one month from the date of receipt of the certificate or of the expiry of the
” time or extended period mentioned in subsection (4) of that section, as the case
” may be.”
To resume the factual narrative, it is to be observed that in the appellants’ application
of 9th September 1974 it was represented that an appropriate class of development for
the land in question would be residential with associated commercial purposes. On
22nd October 1974 the respondents issued to the appellants a certificate, in effect under
section 25(4)(b) of the 1963 Act, stating that, in their opinion as local planning
authority, planning permission could not reasonably be expected to be granted in
respect of the land for any development other than that proposed to be carried out by
themselves as acquiring authority, i.e. development for school purposes. The certificate
12
was contained in a letter from the Deputy Town Clerk, which went on to give the
reasons for which the respondents’ planning committee took that view, but which
omitted to comply with the requirement of article 3(3) of the 1959 order that a
certificate under section 25(4)(b) of the 1963 Act should include also a statement in
writing of the rights of appeal given by section 26 of the Act and by the order. On 9th
January 1975 the appellants by letter to the Secretary of State for Scotland, sought to
appeal to him against the certificate. This was, of course, outside the time limit of one
month prescribed by article 4(1) of the 1959 order. The appellants in their pleadings
over that they did not appreciate that notice of appeal had to be given within that period
by reason that the certificate omitted the requisite statement of their rights of appeal,
but the respondents dispute this. In the result, the Secretary of State refused to entertain
any appeal on the ground that it was out of time and he therefore had no power to do so.
The appellants’ solicitors on 14th March 1975 called on the respondents to issue a
certificate in proper form, but they refused to do so.
Accordingly the appellants, on 16th April 1975, raised the present action against the
respondents concluding, first, for reduction of the purported certificate dated 22nd
October 1974, and second (as the conclusion was amended in the Inner House) for
declarator that the respondents were bound, on the appellants’ of 9th September 1974,
to issue an amended certificate in respect of the land in question and decree ordaining
them to do so within two months of such decree. The Secretary of State was called as
second defender for any interest which he might have.
The case came before the Lord Ordinary (Lord Dunpark) on procedure roll, and on
24th February 1977 he delivered an opinion in which he expressed the view that the
certificate of 22nd October 1974 was invalid by reason that it contained no statement in
writing of the appellants’ rights of appeal such as was required by article 3(3) of the
1959 order. Instead, however, of granting decree of reduction and declarator as
concluded for, he made a finding that the appellants’ letter to the Secretary of State
dated 9th January 1975 was a valid notice of appeal against the certificate “in the
belief”, as he put it, “that the Secretary of State will now accept it as such and arrange to
hear the appeal.” The respondents reclaimed, and in the course of the proceedings
before the Inner House the appellants proposed to amend their pleadings by adding a
conclusion for declarator that their letter of 9th January 1975 was a timeous and valid
notice of appeal with which the Secretary of State was bound to deal. This amendment
was allowed and the Secretary of State thereupon lodged defences. The Lord Ordinary’s
interlocutor of 24th February 1977 was then recalled and the case was remitted back to
him to proceed as accords. In due course there was a further procedure roll debate
before Lord Dunpark, as a result of which he was persuaded, having heard argument
for the Secretary of State, to depart from his earlier finding that the appellants had given
valid notice of appeal. Accordingly he issued an interlocutor dated 15th June 1978
granting decree of reduction of the certificate in terms of the appellants’ first conclusion
and also, on the basis of a concession by counsel for the respondents that this must
necessarily follow, decree of declarator in terms of the second conclusion, that the
respondents were bound to issue a fresh certificate within two months of the date of
decree, The action so far as directed against the Secretary of State was dismissed as
irrelevant, and that matter has since been allowed to rest, the Secretary of State taking
no further part in the proceedings.
The respondents reclaimed, and the reclaiming motion was heard by the Second
Division (the Lord Justice-Clerk (Lord Wheatley) Lord Kissen and Lord Robertson).
Counsel for the respondents withdrew the concession that decree in terms of the second
conclusion must necessarily follow from decree in terms of the first, and also argued for
the validity of the certificate dated 22nd October 1974 on the ground that the provisions
of article 3(3) of the 1959 order were not mandatory but only directory. By interlocutor
dated 26th January 1979, which is that now appealed from, the Second Division
affirmed the Lord Ordinary’s decision that the certificate was invalid and should be
reduced, but refused as incompetent decree in terms of the second conclusion ordaining
the respondents to issue an amended certificate. Their ground for so refusing was thus
stated in the opinion of the court:
” The procedure called for in the second conclusion would involve ignoring the
” specific statutory requirements regulating the issue of a certificate, and issuing
” an order of court ordaining the first defenders contrary to their wishes to do
” something for which there is not only no statutory authority but which would be
” directly in the teeth of the statutory provisions.”
13
The appellants by their appeal to this House seek reversal of that part of the Second
Division’s interlocutor which refused decree in terms of the second conclusion. The
respondents not only resist that but by their cross-appeal attack that part of the
interlocutor which granted decree in terms of the first conclusion.
It is logical in the circumstances to consider first whether the Lord Ordinary and
their Lordships of the Second Division were right in granting decree of reduction of the
certificate dated 22nd October 1974. It was argued for the respondents initially that the
notice as to rights of appeal required by article 3(3) of the 1959 order was something
severable from the certificate itself. The certificate, so it was maintained, constituted a
decision of the local planning authority which had a force and validity of its own
unaffected by any failure to give the statutorily required notice about rights of appeal.
Reference was made ot the decision of the Court of Appeal in Brayhead (Ascot) Ltd. v.
Berkshire County Council [1964] 2 Q.B. 303, where it was held that the failure of a local
planning authority, when granting planning permission subject to a condition, to give
reasons in writing for the imposition of the condition as required by article 5(9) of the
Town and Country Planning General Development Order 1950 did not render the
condition void. This was upon the ground, as stated by Winn J. at pp.313, 314, that
while the requirement was mandatory in the sense that compliance with it could be
enforced by mandamus, non-compliance did not render the condition void because that
result was not required for the effective achievement of the purposes of the statute under
which the requirement was imposed, and not intended by Parliament on a proper
construction of that statute. In my opinion the argument is not assisted by the case
referred to and is unsound. Article 3(3) of the 1959 order specifically states that any
certificate issued under section 25(4)(b) of the Act “shall include” a statement in
writing of rights of appeal. This is entirely contrary to any idea of severability, and the
provision is clearly necessary for effectively achieving the obvious purpose that the
applicant receiving the certificate should know what his rights are. The consequences of
failure to inform him of these rights may be irretrievable, unlike the consequences of
failure to state reasons in writing, which can always be put right at a later date without
anything more serious than some inconvenience.
Then it was contended that article 3(3) was not intended to be mandatory or
imperative, but merely directory and procedural in effect. It was said that any applicant
for a certificate of appropriate alternative development must have read the 1959 order
for the purpose of finding out how to make application. Reliance was also placed upon
the circumstance that, in cases where section 26(5) of the 1963 Act operated so as to
give the applicant a right of appeal by reason of the planning authority’s failure to issue
a certificate timeously, no machinery was provided whereby the applicant might have
notice of that right of appeal. It was pointed out that such machinery was provided in
Schedule 2 to the Town and Country Planning (General Development) Order 1950 (S.I.
1950 No. 728) in relation to the analogous statutory provisions regarding appeals
against deemed refusal of planning permission (though curiously enough not in the
corresponding Scottish order (S.I. 1950 No. 942), by way of the form there prescribed
for acknowledgment by local planning authorities of applications for planning
permission.
The word “shall” used in article 3(3) is normally to be interpreted as connoting a
mandatory provision, meaning that what is thereby enjoined is not merely desired to be
done but must be done. In many instances failure to obtemper a mandatory provision
has the consequence that the proceedings with which the failure is connected are
rendered invalid. But that is not necessarily so. As is shown by the case of Brayhead
(Ascot) Ltd. v. Berkshire County Council (supra) something may turn upon the
importance of the provision in relation to the statutory purpose which the provision is
directed to achieving, and whether any opportunity exists of later putting right the
failure. I have no doubt that in the present case the provision under consideration is
intended to be mandatory and is of such a character that failure to comply with it
renders the certificate invalid. Where Parliament, albeit through subordinate
legislation, has enacted that a person is to be informed of the rights of appeal conferred
upon him by statute in relation to a particular subject-matter whereby his rights may be
very materially affected, it will not do to say that failure to comply with the enactment
has no legal result whatever. The matter is of great importance and has been shown to
have been so regarded by Parliament. Failure to comply may deprive the person
concerned of his rights of appeal with no opportunity of rectifying the situation. While
it is indeed curious that no provision is made for acquainting an applicant for a
14
certificate with his rights of appeal where no certificate is issued within the prescribed
time, I regard that omission as inadvertent, and not s serving in any way to indicate an
intention that the provisions of article 3(3) about notification of rights of appeal should
be merely directory. I note that authority in favour of the view that a provision of this
nature is mandatory in the sense that failure to comply renders the proceedings invalid
is to be found in Agricultural, Horticultural and Forestry Industry Training Board v.
Kent [1970] 2 Q.B. 19. That was a decision of the Court of Appeal upon article 4(3) of
the Industrial Training Levy (Agricultural, Horticultural and Forestry) Order 1967,
whereby any notice of assessment to a levy made under section 4 of the Industrial
Training Act 1964 was required to state the appropriate address for service of notice of
appeal against the levy. Failure to comply with this requirement was held to invalidate
the notice of assessment.
The final argument for the respondents on this branch of the case turned on the terms
of section 26(4) of the 1963 Act, which I have quoted above. That enactment gives a
right of appeal where the local authority fails to issue a certificate within the prescribed
time, upon the basis that a certificate in terms of section 25(4)(b) is deemed to have been
issued. In the event, so the argument ran, that the certificate actually issued in this case
is held to have been invalid, the situation is the same as if no certificate had been issued.
Therefore section 26(4) applies, under which no question of notification of rights of
appeal arises. The appellants should have appealed to the Secretary of State within one
month of the expiry of the period of two months from the receipt by the respondents of
the appellants’ application for a certificate. They did not do so, and therefore they have
lost any right of appeal. In my opinion this argument also is unsound. In the first place it
is to be observed that the argument is elided if decree is to be granted not only reducing
the certificate actually issued but also ordaining the respondents to issue a new
certificate in proper form. It is not an argument in favour of the validity of the certificate
issued. Indeed, it requires that the certificate should have been totally void ab initio and
that the respondents should be treated as having done nothing at all in response to the
appellants’ application. That would, in my opinion, be totally unrealistic. The
respondents did issue a certificate, but it contained a defect enabling it to be successfully
attacked as invalid. I do not consider that section 26(4) applies to that situation. It
applies where after the expiry of the time prescribed “no certificate has been issued”.
Here a certificate was issued which, though defective, was not a complete nullity. In this
context use of the expressions “void” and “voidable”, which have a recognised
significance and importance in certain fields of the law of contract, is to be avoided as
inappropriate and apt to confuse. A decision or other act of a more or less formal
character may be invalid and subject to being so declared in court of law. and yet have
some legal effect or existence prior to such declaration. In particular, it may be capable
of being submitted to an appeal (c.f. Calvin v.Carr [1979] 2 All ER 440 per Lord
Wilberforce at p.445). In my opinion the certificate issued in the present case was of that
character. It had some legal effect unless and until reduced, and in particular it might,
in my view, have been the proper subject of a timeous appeal to the Secretary of State.
It follows that in my opinion the Lord Ordinary and the Second Division were right
in granting decree of reduction of the certificate, and it is necessary to consider next
whether the Second Division was right to refuse decree in terms of the second
conclusion.
The view taken in the Second Division was, as I have already mentioned, that the
respondents had no power to issue a certificate after the expiry of two months from the
date of receipt of the appellants’ application, that it would be “in the teeth of the
statutory provisions” to ordain them to do so, and that the second conclusion was
therefore incompetent. But article 3(2) of the 1959 Order, while laying down that the
time within which a certificate is to be issued shall be the two months period, does not
expressly forbid the issue of a certificate after the expiry of that period. Nor, in my
opinion, does it do so by necessary implication. It cannot reasonably be considered
necessary for the achievement of the purposes of the 1963 Act that the two months time
limit should be strictly adhered to, nor that failure to do so might have irretrievable
consequences. Therefore I would regard this provision as clearly having not a
mandatory but a directory character, designed to secure reasonable expedition on the
part of the local planning authority. It is easy to envisage that an application for a
certificate might call for elucidation or further information than was at first available,
with the result that strict adherence to the time limit was impossible or at least not
conducive to the satisfactory disposal of the application, and might be departed from
without any prejudice to anyone. Such considerations make it quite unreasonable to
15
regard the provision as mandatory. I think that further support for the view that it is not
is to be gathered from that part of section 26(4) of the Act which indicates that the
parties concerned and the planning authority may “at any time” agree upon an
extended period, of whatever duration, for the issue of a certificate. This also serves to
show that the obligation to issue a certificate which is laid upon the local planning
authority by section 25(4) is a continuing one. I see no sound grounds for supposing that
this obligation is not to be capable of enforcement by appropriate legal proceedings,
where these are necessary in order to vindicate the rights of an applicant. It is true that
section 26(4) provides a means whereby, if the local planning authority is guilty of delay
in issuing a certificate, the applicant can in effect short-circuit the authority and go
straight to the Secretary of State. But this remedy appears to be an optional one, and its
existence does not, in my view, lead properly to the inference that the authority’s
statutory duty to issue a certificate can in no circumstances be enforced by legal
proceedings.
In support of the proposition that the issue of a certificate outside the statutorily
prescribed periods is not ultra vires the local planning authority, counsel for the
appellants founded on James v. Minister of Housing and Local Government [1966] 1
W.L.R. 135 and [1968] A.C. 409, and London Ballast Co. Ltd. v. Buckinghamshire
County Council (1966) 18 P. & C. R. 446. In each of these cases a point arose regarding
the validity of a conditional planning permission granted after the expiry of the period
statutorily prescribed for doing so. It is unnecessary to examine the cases in detail. It is
sufficient to say that in each of them opinions were expressed to the effect that a
planning permission so granted was not necessarily voidable, but that it might be so in
certain circumstances. That appears to me to be an unexceptionable statement of the
law.
The argument for the respondents on this branch of the case, in its main thrust, was
concerned with the contention that the remedy sought by the appellants was
inappropriate. It was suggested that recourse might be had to the nobile officium of the
court. I regard that suggestion as entirely misplaced. The nobile officium does not exist
to deal with matters of disputed right. Its chief object is to provide a means of rectifying
obvious errors or omissions, principally of an administrative character, which cannot be
dealt with in any other way. The present case is concerned with the appellants’ right,
disputed by the respondents, to require the latter to issue to them a certificate under
section 25(4) of the 1963 Act which is in proper form. That is a matter appropriate to be
dealt with by the ordinary processes of law, and which does not in any respect concern
the nobile officium. The argument for the respondents did not, in my opinion, come to
grips at all with the appellants’ contentions upon this matter of disputed right, let alone
counter them successfully. These contentions must therefore prevail.
It remains to notice a submission for the respondents that the appellants should be
put to proof of their averment that they were unaware of the time limit for appealing to
the Secretary of State and this was the reason why their appeal was late. I reject that
submission. The invalidity of the certificate derives from a defect of general application,
and nothing turns on the state of the appellants’ knowledge.
My Lords, for these reasons I would allow the appeal and dismiss the cross-appeal.
Counsel for the appellants asked leave to further amend the second conclusion of the
summons by substituting the word “fresh” for the word “amended” before the word
“certificate” in the fourth line, and such leave should be granted. Subject to that, the
appropriate order would be to recall the interlocutor of the Second Division dated 26th
January 1979 in so far as it refused decree in terms of the second conclusion of the
summons, and quoad that conclusion as amended to sustain the second and third pleas
in law for the pursuer and to grant decree in terms thereof. The respondents will be
liable to the appellants for costs in this House and also for all expenses in the Court of
Session, apart from those for which the appellants were found liable to the second
respondent by interlocutor of the Lord Ordinary dated 15th June 1978.
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