Scottish Court of Session Decisions

Petitioner: O'Carroll; Brodies, W.S.

[1] The petitioner, Miss Reside, is the heritable proprietor of subjects at Torbeg Road, Shiskine, Isle of Arran. In this petition, she seeks judicial review of a decision and certain actions of the local planning authority. The local planning authority was previously Cunninghame and District Council, whose statutory successors are North Ayrshire Council, the respondents. It will be convenient to refer to the respondents and their statutory predecessors simply as "the Council": nothing turns upon the change from one council to the other.

[2] In 1989, the petition acquired an area of ground extending to 0.777 hectares at Torbeg Road. Shortly before the grant and registration of her title to these subjects, she had received detailed planning consent for the erection of a dwellinghouse on the subjects in a position some distance back from the frontage on Torbeg Road. In March 1991, she applied for outline planning permission for the erection of two further dwellinghouses on the subjects, on two plots fronting onto Torbeg Road. Access to these two proposed houses and to the house for which permission had already been granted was to be by an access road in front of the latter, and behind the two new houses. This access route gave off a right of way on the southern edge of the subjects, a short distance in from Torbeg Road. The plots upon which the two new houses would stand were referred to in the plan accompanying this application as "Plot No 1" and "Plot No 2". Proposed plot boundaries were shown between them, and between them and the rest of the 0.777 hectares which lay behind them. No further sub-division was shown. In August 1991, outline permission was granted, subject to various conditions.

[3] In October 1991, the petitioner applied for outline permission for the erection of two further dwellinghouses on the subjects, on the rear area behind Plots 1 and 2. The two proposed further houses were shown as lying one on either side of the house for which full permission had been obtained, and this rear area was now shown as sub-divided into Plots 3, 4 and 5. The new houses occupied Plots 3 and 5. Access to the former was by the access road designed to run behind Plots 1 and 2, and an extension thereof. Access to Plot 5 was by a separate short drive off the right of way, further from Torbeg Road. In January 1992, this application was refused, on the ground inter alia that the access would be inadequate. In June 1992, the petitioner submitted a revised application, showing a different access route behind Plots 5, 4 and 3, and between Plots 5 and 4, and with various other alterations to the envisaged plots, reflecting the new design of access routes. This revised application was refused in August 1992. By this time, the house for which full permission had originally been granted was apparently built and complete, but there is no indication that it had any vehicle access.

[4] On 4 October 1993, the petitioner submitted a further revised application for outline permission for erection of two dwellinghouses on the subjects. The access proposals are shown as involving a more substantial access road on the line of the right of way, with a continuation across the subjects serving all five plots. The alignment of this access route is different from any shown in previous plans, and while the plot numbers are retained, the plots now proposed differ, in greater or lesser degree, from those in earlier plans.

[5] By decision letter dated 21 December 1993, the Council refused the outline planning permission sought by this last application. The grounds for refusal were as follows:-

The petitioner appealed against this decision to the Secretary of State, and by decision letter dated 13 December 1994, the Reporter appointed to determine the appeal dismissed it and refused to grant outline planning permission for the proposed houses.

[6] This petition for judicial review does not question the validity or propriety of any of the matters which I have set out, and the petitioner did not appeal to the Court of Session against the decision of 13 December 1994. The matters which the petitioner seeks to bring under judicial review relate to what happened thereafter. Before I come to these matters, it is convenient to set out certain provisions of the Town and Country Planning (Scotland) Act 1972, which for present purposes is the relevant statute.

[7] Part IX of the 1972 Act sets out certain provisions enabling an owner or lessee to require purchase of his interest. In relation to interests affected by planning decisions or orders, section 169 provides inter alia as follows:

A notice under section 169 is referred to in the Act as a "purchase notice".

Section 170 of the Act provides inter alia, as follows:-

[8] Regulation 4 of the Town and Country Planning (General) (Scotland) Regulations 1976 (S.I. 1976/2022) provides that the time within which certain claims or notices, including a purchase notice under section 169, are to be served shall be, in the case of a purchase notice, 12 months from the date of the decision in respect of which the notice is given, subject to a proviso that the period may be extended by the Secretary of State in any particular case.

[9] On or about 9 February 1995, the petitioner served on the Council a purchase notice, or purported purchase notice, under section 169 of the 1972 Act, requiring the Council to purchase her interest in Plots 3 and 5. The document was a printed form, with manuscript alterations and additions. The printed form contained a claim setting out heads (a), (b) and (c) as they appear in section 169(1) of the 1972 Act. Approximately alongside the letter (b), a side note says "delete if permission was refused". As completed by the petitioner, however, head (a) is left standing, to the effect that the land has become incapable of reasonably beneficial use in its existing state, with the additional words in manuscript "since planning was refused for the remainder - the purchase notice land". Thereafter not only head (b) but also head (c) was wholly deleted.

[10] By letter dated 3 May 1995, the Council's principal solicitor wrote to the petitioner, referring to her purchase note dated 9 February 1995. In that letter, he says that having fully investigated this matter, he is of the view that her purchase notice is invalid, for two reasons. Put shortly, the first reason is that the date of the notice is over 12 months from the date of the Council's decision. The second is that "it is a requirement of a valid purchase notice that these two conditions apply", these being detailed in the purchase notice form as (a) and (c), which are quoted in the letter. The writer of the letter says "You have deleted both paragraphs (b) and (c) in the pro forma notice. Accordingly the requirements of a valid purchase notice have not been satisfied and the notice is invalid". He goes on to say that for the foregoing reasons, the Council do not intend to take any further action regarding the purchase notice, and "Finally it is perhaps worth mentioning that if your notice had been valid, the Council would not have complied with it. The Council's Planning Department are of the view that the land is capable of reasonably beneficial use". The Council did not, before the end of the period of three months beginning with 9 February 1995 serve any notice in terms of, or which would comply with, section 170(1) of the 1972 Act - evidently upon the basis that the petitioner's notice or purported notice being "invalid" was not a purchase notice which had been served upon them under section 169 so as to give rise to the requirements of section 170(1).

[11] The petitioner's position is that her purchase notice was timeous and valid in terms of section 169; and that the Council, having failed to comply with section 170(1)(c) and (3), are deemed, by virtue of section 170(4), to be authorised to acquire her interest in plots 3 and 5, and to have served a notice to treat. She seeks declarators to that effect, and in addition seeks reduction of the Council's determination set out in their letter of 3 May 1995, and subsequently confirmed. In addition to disputing the two fundamental issues of timeousness and validity, the Council raise a third main issue: they contend that the petitioner has delayed in raising the present proceedings to their prejudice, and is barred from proceeding further by reason of what may be described briefly as mora. It is convenient to deal with that matter first.

[12] The parties were agreed that the principle upon which a plea of bar based upon mora might be upheld were to be found in Assets Company Limited v Bain's Trustees 1904 6 F. 692, and in particular the Lord President's observations at p. 705: "It appears to me... that the plea of mora cannot be successfully maintained merely on account of the lapse of time, but that the person stating it must also be able to show that his position has been materially altered, or that he has been materially prejudiced, by the delay alleged. In other words, mere lapse of time will not, in my judgment, found an effective plea of mora."

[13] The petitioner took issue with the Council's letter of 3 May in a letter of 22 May; and the Council in a reply dated 1 June reiterated certain aspects of their position. The petitioner thereafter made contact with the Scottish Office in June and July 1995 and thereafter, by a letter of 2 August 1995, the Council purported to give notice in terms of section 170(1)(c), in terms to which I shall return. In September 1995, the Scottish Office wrote to both parties indicating that any questions as to the validity or effectiveness of the purchase notice were essentially matters between the planning authority and Miss Reside. Thereafter Miss Reside appears to have taken further advice; but the next contact made with the Council was on 14 May 1996. The Council thus found upon a period of some 8 months, from September 1985 until May 1996, which they treat as delay by the petitioner. Between May 1996 and October 1996, there was a delay which can be regarded as attributable to the Council; but from October 1996 until June 1997 one has a further period of about 8 months, which the Council found upon as essentially a delay by the petitioner. In July 1997, it is evident that the petitioner was seeking legal aid and that the Council were aware of this. But after the grant of legal aid in April 1998, there is a further period of five months before the petition was presented. The Council found upon this five month period as again being a delay attributable to the petitioner. Taken together, the two periods of eight months and this period of five months are said to demonstrate the type of delay which would justify a plea of mora, if the other requirements can be met. It was submitted that in considering the question of delay, one must bear in mind that one is concerned with a statutory process in which time limits are the rule; and moreover that when a party sought judicial review of administrative action by a public authority, it was acknowledged that the party must act promptly, in the interests of good administration. Moreover, while in general terms it was necessary for the Council to show that its position had been materially altered or that it had been prejudiced as stated in Assets Company Limited, a general detriment to good administration could suffice, in the context of judicial review, even if there was no more particular prejudice to the local authority.

[14] I was referred by counsel for the parties to a considerable number of cases, including Swan v The Secretary of State 1998 SC 479; Kwiksave v The Secretary of State 1999 SLT 193; Perfect Swivel v Dundee Licensing Board (Case No 2) 1992 SLT 112; Hanlon v The Traffic Commissioners 1988 SLT 802; Altherton v Strathclyde 1995 SLT 557; O'Reilly v Mackman 1983 2 AC 237; Carswell v The Dairy Tribunal 1990 2 AC 738; and Carlton v Glasgow 1994 SLT 549. I am satisfied that the authorities show that when a party seeks judicial review of the actings of a public authority, it will be legitimate and may well be appropriate to take into account the general question of detriment to good administration, and that where there is such detriment, it may be unnecessary to find any specific harm flowing from the specific delay in a specific way. But the cases also show, as is obvious, that each case must be considered upon the basis of its own circumstances.

[15] In this case, the Council make averments in relation to their capital budgets and expenditure, their capital projects and their commitments and plans. Certain minor matters are also mentioned. An affidavit is produced, in connection with these matters and comparing the differing degrees of supposed prejudice in having to acquire the plots in different years. However, counsel for the Council acknowledged that in the context of local authority expenditure, the effect of the delay was "negligible" and I am entirely unwilling to hold that what has happened has been of any direct prejudice to the Council. On the broader question of whether the petitioner's delays have caused such detriment to good administration that she should be barred from proceeding further, I am again wholly unwilling to draw any such conclusion. Indeed, although there were substantial delays while the matter was in a sense in her hands, it appears to me that the way the matter was handled at each stage by the Council was unhelpful, intricate and in some ways misconceived, and I am not prepared to regard even the delays on her side as entirely her responsibility. The circumstances in which detriment to good administration would be a proper consideration seem to me to be very different from those in the present case. Overall I have no hesitation in repelling the plea of mora.

[16] I also reject the Council's contention that the purchase notice was served out of time. The date from which the twelve months runs, in terms of the 1976 Regulations, is "the date of the decision in respect of which" the notice is given. Section 169 does not concern itself with the question of who has made the decision: the right to serve a notice arises where "on an application for planning permission to develop any land, permission is refused or is granted subject to conditions". The decision with which the Regulations are concerned is thus clearly the refusal of permission, or grant subject to conditions. And service of the notice is not service on the authority which took that decision, but service "on the local planning authority in whose district the land is situated". If a decision is not appealed, the original refusal (or grant subject to conditions) by the local authority will plainly constitute the start-date. But if there is an appeal, the application for planning permission has not been disposed of and it appears to me that the reporter in the present case, in his letter of 13 December 1994, described matters correctly when he said not merely "I hereby dismiss your appeal" but also "and refuse to grant outline planning permission for the proposed houses". It is clear that he could have granted such permission. It is also clear that he could have granted permission subject to conditions. If, following upon a refusal by the local authority, a reporter grants permission subject to conditions, that must be a "decision" for the purposes of the 1976 Regulations. To suggest that it would not be so if the decision on appeal upheld a prior conditional grant or refusal would mean that the date of the relevant "decision" would depend upon the content of the actual decision at appeal. That seems to me to be entirely absurd, as would the running of time pending appeal. I was referred to a number of passages in textbooks and the like, but none of these lead me to think that there is any doubt upon the matter.

[17] For what it is worth, I note that when the petitioner, faced with the Council's attitude on this matter, sought an extension of the period within which a purchase notice might be served, the reply dated 21 June 1995 expresses the view that the timescale which would apply would be twelve months from the date of the decision of the Secretary of State. The Scottish Office therefore took the view that in this case such an extension was not required. While the Council thereafter in correspondence continued to labour the point, I see no purpose in doing so, and reject this argument.

[18] I turn therefore to the other main issue, as to whether the deletion of paragraph (c) on the purchase notice, or the absence from the purchase notice of any claim in terms of paragraph (c) of section 169(1), renders the purchase notice "invalid", so that the Council were not a local planning authority "on whom a purchase notice is served under section 169" for the purposes of section 170(1), and were thus not obliged in terms of that sub-section to serve on the petitioner, before the end of three months, a notice of the type specified in that sub-section.

[19] It is to be observed that section 169(1) allows an owner of land to serve on a local planning authority "a notice requiring that authority to purchase his interest in the land". It only allows him to do this if he "claims" inter alia "in any case, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of any other development" for which permission has been granted etc. But at least at first sight, such a claim is simply a condition of his being allowed to serve the notice requiring purchase of his interest in the land. The section does not, at least expressly, say that the notice itself must either make the claim, or assert that the land cannot be thus rendered capable of reasonably beneficial use. The nature and function of the notice is that it requires that authority to purchase the owner's interest in the land for which permission to develop has been refused, or granted subject to conditions. Only if a person makes certain claims is he entitled in terms of section 169(1) to serve such a notice. If he does not assert a claim in the notice, how (and when) can he make the claim, and thus satisfy the pre-condition set out in section 169? And even if, on a construction of the statutory requirements, it is evident that the claim must be asserted in the purchase notice, what is the effect of missing it out? Is the purchase notice defective, but nonetheless a purchase notice? Or is it simply not a purchase notice because of the defect?

[20] Counsel for the petitioner submitted that the nature and function of this purchase notice, as a purchase notice, was evident on looking at it. If the council thought, on receiving such a notice, that it did not provide them with all that they needed by way of information, then such inadequacies or defects could be founded upon by them as reasons for not being willing to comply with the purchase notice, at the stage of serving a notice themselves, in terms of section 170(1). That was how they should deal with any reason which they might have for being unwilling to comply with the notice. There might be a point relating to ownership, or the identity of the land, or the terms of the refusal or conditional grant, or the factual situation in terms of heads (a), (b) or (c) of section 169(1). The points which they could take would not be limited to matters arising on the face of the notice. The notice was simply a requirement; and there might be any number of reasons for not wishing to comply with it. It was for them to set out these reasons, not for the person making the requirement to use the notice as a place for setting out his own position. By failing to serve notice in terms of section 170, and to transmit the matter to the Secretary of State, the Council had effectively denied the petitioner the opportunity, in relation to any matters on which the parties might differ, to join issue, in the appropriate forum, which was before the Secretary of State. And even if they thought that a particular defect or omission meant that there was an inherent reason for refusing to comply with it, the question was still whether they had such a reason: it was not for them simply to announce that the notice was so invalid as not to be a notice at all, thus excluding the Secretary of State from considering this or other reasons for non-compliance. In the letter of 3 May 1995, the Council had said that they did not intend to take any further action regarding the purchase notice, but went on to say that if the notice had been valid the Council would not have complied with it, the planning department being of the view that the land was capable of reasonably beneficial use. Those matters should have been dealt with by a notice in terms of section 170(1), and transmission to the Secretary of State. By failing to follow that course, the Council had taken a decision which ought to be quashed, and the consequence was that section 170(4) came into operation. The Council's belated attempt to serve a notice under section 170(1) by their letter of 2 August 1995, showed the way in which they could have taken these points by such a notice. But they had failed to do so in time, and could not do so late. All the petitioner had to do in terms of section 169(1) was tell the Council what they were required to do - not why.

[21] Counsel for the Council submitted that a claim must be "made"; it was not equivalent to private belief. Only by asserting the claim could one demonstrate that one had a locus to serve the purchase notice. And while in a sense the claim was a prerequisite (as it was treated in the Encyclopaedia of Planning Law at pp. P137-06) such a notice could only be an notice if it showed that it came from an appropriate person. Many "notices" recognised or required by law involve, as elements essential to their validity, some indication of what it was that was claimed to give rise to some obligation on the part of the recipient, or required action by him. This was inherent in being fair to the recipient. Reference was made to Miller-Mead v The Ministry of Housing and Local Government 1963 2 QB 197, Upjohn, LJ at p. 225 and 232. Section 169 of the 1972 Act should be read as telling the person serving a purchase notice what must be contained in the notice, showing the recipient council why it was being required to purchase the land. The fact that the pro forma notice took that form was not itself binding; but it reflected what was necessary for compliance with section 169(1). Moreover, the petitioner having used the standard form, and having actually deleted head (c), was indeed stating what she claimed, within the notice, and the deletion of head (c) must be read as showing that she was positively excluding from her claim one of its essentials. Whatever the general position, this was an ex facie invalid notice.

[22] In considering what must be done in order to comply with section 169(1), and whether the Council could in the circumstances of this case safely proceed on the basis that the petitioner's purchase notice was invalid, so that they could abstain from serving any notice under section 170(1) without incurring the consequences set out in section 170(4), I have come to the view that a useful overall approach is to be found in the observations of the Lord Chancellor in London and Clydeside Estates Limited v City of Aberdeen District Council 1980 SC HL 1 at p. 30 and 31. The relevant observations cover more than a page, and I do not think it necessary to repeat them all here. But in considering what is necessary for a valid purchase notice, I have come to the view that it is not appropriate to try to fit this purchase notice into "one or other of mutually exclusive and starkly contrasted compartments" in a situation which is not one of obvious total non-compliance, or obvious satisfactory compliance. In consideration of the terms of notices of this kind, there is in my opinion "a spectrum of possibilities in which one compartment or description fades gradually into another". Where a citizen is trying to assert some right, it seems to me that it will be difficult for a public authority to say that the situation lies at the end of the spectrum described by the Lord Chancellor as containing "cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied" that the public authority could "safely ignore what has been done and treat it having no legal consequences" upon the authority.

[23] I am puzzled that in this case the local authority, in reliance upon its view about time requirements and the significance of the deletion of paragraph (c), abstained from serving a notice in accordance with sub-section (1)(c) of section 170 and transmitting the notice to the Secretary of State in terms of subsection (3) of that section. Given the consequences of not serving any notice in terms of section 170(1), their reliance on doing nothing strikes me as odd.

[23] That matter does not of course assist me in reaching a conclusion as to the legal position. But I have come to the view that the Council were wrong in regarding this notice as so invalid as not to be a notice. I am not persuaded that it is essential for an owner's claims to be included in the notice itself. For example, if the claims were asserted in an accompanying letter, I cannot see why one should see that as involving any non-compliance with section 169(1). And even in the absence of any such contemporaneous assertion of claim, the fact that in my opinion the claim need not be asserted in the body of the notice itself leads me to the conclusion that the question of whether the owner meets the prerequisite conditions set out in section 169(1) is a fact which could be established in various ways, and is essentially extraneous to the status of the purchase notice itself, as a purchase notice requiring response in terms of section 170. The fact that paragraph (c) appeared on, but had been deleted from the form used by the petitioner is likewise in my opinion insufficient to reduce the status of the purchase notice to that of being effectively a nullity. In the whole circumstances I am satisfied that there was service of a purchase notice in terms of section 169(1); that the purchase notice having been served on the Council, they were required, before the end of the period of three months, to serve on the petitioner a notice in terms of section 170(1); and that they not having done so, the purchase notice must be deemed to be confirmed at the expiration of that three month period, and the Council must be deemed to be authorised to acquire the interest of the owner or lessee compulsorily in accordance with the relevant provisions, and to have served a notice to treat in respect thereof at the expiration of that period, all in terms of section 170(4).

[24] In these circumstances, the merits of the Council's position are not really in point. They have missed their opportunity to avoid the consequences set out in section 170(4). I should mention however that I was concerned by the fact that, in the course of the various planning applications, Plots 3 and 5 plainly had different boundaries in different applications, and by the underlying fact that the various plots had no objective existence, merely being different areas of the overall holding of 0.777 hectares, perfectly capable of remaining as land associated with the house originally permitted and built. It may well be that Plots 3 and 5, as identified in the final application with which we are concerned, are to be regarded as within the original grant of planning permission, and capable of reasonably beneficial use within that grant. However, the opportunity to dispute that matter has now gone. And while the descriptions contained in the final planning application and the purchase notice itself may be open to criticism, they do not relate to the whole area of 0.777 hectares, and it appears to me that by failing to serve any notice in terms of section 170(1), one must proceed upon the basis that the Council have served a notice to treat in respect of what is described in the purchase notice. Any objections they might have had as to boundaries and the like have again been lost by their own inaction.

[25] On behalf of both sides, certain submissions were made as to alternative courses which might be fair or sensible or the like. But I do not think that it is for me to try to set things off again on new tracks, in a situation where section 170(4) has in my opinion taken effect. In the whole circumstances, I shall reduce the Council's decision of 3 May 1995, and grant the declarators sought by the petitioner.