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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 44
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OPINION OF LORD MENZIES
in the Petition of
ALAN TERENCE
HOUSTON
Petitioner;
for
Judicial Review of
The Renfrewshire Council (West Johnstone) Compulsory
Purchase Order 2003
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Party
Respondents: Mure;
Simpson & Marwick (Renfrewshire Council)
Springham; R Henderson, Solicitor to the Scottish
Executive (Scottish Ministers)
2 February 2007
Introduction
[1] The petitioner formerly
resided at 12 Benston Place,
Johnstone, Renfrewshire. In this
petition he seeks judicial review of the Renfrewshire Council (West
Johnstone) Compulsory Purchase Order 2003. He seeks an Order reducing this Compulsory
Purchase Order and stopping the respondents from proceeding any further in
reliance on it with the development of the lands which are the subject of the Order. The respondents are Renfrewshire
Council. The Scottish Ministers have
lodged answers as interested parties.
[2] The
petition was lodged on 8 December
2006, and on 12 December
2006 a first order was granted and the court assigned 2 February 2007 as the date for the
First Hearing. The matter came before me
on that date at First Hearing. In their
answers the respondents stated two preliminary pleas in the following terms:
"1. The petition being
incompetent in terms of paragraph 16 of the first schedule to the 1947 Act
and by virtue of the petitioner's failure to exercise his statutory right of
appeal against the 2003 Order, the petition should be dismissed.
2. The petitioner being
barred by mora, taciturnity and
acquiescence from insisting in the present application, the petition should be
refused."
Substantially the same pleas were
contained in the answers for the Scottish Ministers. I indicated at the outset of the hearing that
it might be appropriate to hear arguments on questions of competency and
personal bar, and to reach a decision thereon, before proceeding to consider
the substantive merits of the petition.
I suggested that counsel for the respondents and the Scottish Ministers
should make their submissions as to competency and personal bar first, and that
the petitioner should thereafter respond to these submissions. None of the parties demurred from this
suggestion, and that is how matters proceeded.
Submissions for the respondents
[3] Counsel began by explaining
that the Order which is challenged by the petitioner was promoted by the
respondents in their capacity as education authority. Section 20(5) of the Education (Scotland)
Act 1980 provides as follows:
"An education
authority may be authorised by the Secretary of State to purchase land
compulsorily for the purposes of this Act, and the Acquisition of Land
(Authorisation Procedure) (Scotland) Act 1947 shall apply in relation to any
such compulsory purchase as if this Act had been in force immediately before
the commencement of that Act."
Counsel then referred me to the
Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 ("the 1947
Act") and in particular to the provisions of sections 1(1) and 5(1) and to
the procedures set out in paragraphs 1, 4(2) and 6 of the first schedule
thereto.
[4] Counsel
then referred me to the statutory mechanism for appeals to this court, and to
the provisions preventing challenge by any other means, which are contained in
paragraphs 15 and 16 of schedule 1 to the 1947 Act. As these played an important part of the
arguments before me, it is perhaps appropriate to set out the salient parts of
these paragraphs here.
Paragraph 15(1) provides inter
alia as follows:
"If any person
aggrieved by a compulsory purchase order desires to question the validity
thereof, or of any provision contained therein, on the ground that the
authorisation of a compulsory purchase thereby granted is not empowered to be
granted under this Act or any such enactment as is mentioned in
subsection (1) of section 1 of this Act, or if any person aggrieved
by a compulsory purchase order or a certificate under Part III of this
Schedule desires to question the validity thereof on the ground that any
requirement of this Act or of any regulation made thereunder has not been
complied with in relation to the order or certificate he may, within six weeks
from the date on which notice of the confirmation or making of the order or of
the giving of the certificate is first published in accordance with the
provisions of this Schedule in that behalf, make an application to the Court of
Session ...".
Paragraph 16 provides as
follows:
"Subject to the
provisions of the last foregoing paragraph a compulsory purchase order or a
certificate under Part III of this Schedule shall not, either before or
after it has been confirmed, made or given, be questioned in any legal
proceedings whatsoever, and shall become operative on the date on which notice
is first published as mentioned in the last foregoing paragraph."
[5] Counsel
set out the chronological sequence of the procedures in the present case as
follows. The background and requirement
for the 2003 Order were set out at length in the respondents' statement of case
(No.7/4 of process) in which the petitioner was noted as a statutory
objector. The required notice relating
to the Order was served on the petitioner, and solicitors acting on behalf of
the petitioner and others wrote to the Scottish Executive by letter dated 30 March 2004 objecting to the Order. On 8 September
2004 a Public Local Inquiry was held by Mr R W Jackson, a
reporter with the Scottish Executive Inquiry Reporters Unit. The petitioner attended at that inquiry and
made submissions to the reporter in support of his objection to the Order (see
paragraphs 3.1 to 3.5 of No.7/5 of process). By letter dated 9 December 2004 the Scottish Ministers accepted the
reporter's findings of fact and decided to confirm the Order subject to
modifications. Paragraph 9 of that
letter referred to the right of any person aggrieved to make application to the
Court of Session in terms of paragraph 15 of the first schedule to the Act
of 1947 within six weeks of the date on which the notice of confirmation is
first published. A copy of this letter
was sent on the same day to the petitioner (see No.13/9 of process).
[6] Formal
notice of confirmation of the Order by the Scottish Ministers was sent to the
petitioner by letter dated 14 January 2005; paragraph 4 of the notice again referred
to the six week time limit within which any application to the Court of Session
must be made. The notice was published
in the press on 19 January 2005. On 21 March
2005 the respondents executed a general vesting declaration which
vested certain property in them with effect from 25 April 2005.
The property thereby vested included the house then owned and occupied
by the petitioner. By letter dated 22 March 2005 the respondents
sent to the petitioner notice of the execution of the general vesting
declaration and a copy of the schedule describing the land affected. By letter dated 18 April 2005 the respondents wrote to the petitioner
drawing his attention to the fact that as from 25 April 2005 they would own his property, and if he
had not moved out of the property by that date his continued occupation would
be unlawful.
[7] The
petitioner did not remove from the subjects at 12 Benston
Place, Johnstone on 25 April 2005, and thereafter summary proceedings
for recovery of possession of the subjects were raised by the respondents in Paisley
Sheriff Court.
The petitioner defended those proceedings and represented himself. The case called before the sheriff on 19 August 2005, when the
appellant addressed the sheriff. His
principal concern was that the respondents had not offered him a suitable
alternative property. The sheriff
continued the case to 2 September
2005 to enable the respondents to investigate this issue. On that date submissions were made by the
solicitor for the respondents, and the petitioner did not challenge the
authorities relied on. At this time the
appellant asked the sheriff if he could apply for judicial review, and the
sheriff pointed out to him that judicial review was a separate court process
which had to be raised by him if he wished to do so in the Court of
Session. The petitioner made no further
submissions to the sheriff, who granted decree in favour of the respondents.
[8] The
petitioner appealed against the sheriff's interlocutor of 2 September 2005 to the Sheriff Principal; in his note of appeal the petitioner
indicated that he wished to seek redress in the Court of Session,
Edinburgh. The matter came before the Sheriff
Principal at an Incidental Application Hearing on 16 November 2005.
At that hearing the petitioner was absent. The Sheriff Principal dismissed the
petitioner's note of appeal in respect that it did not disclose a point of
law. In doing so, he included the
following comments in his Note:
"The pursuers
lodged an incidental application seeking dismissal of Mr Houston's appeal
to the Sheriff Principal on the ground that no point of law had been identified
for the sheriff principal's adjudication.
I fixed 16 November 2005
as a diet for hearing parties thereon.
When Mr Houston received notice of that diet he phoned to ask for
it to be postponed since he required to go to Australia
from 14 November 2005
until 23 January 2006. I took the view that the matter could not
properly be put off for such a long time and Mr Houston was informed by
telephone on my instruction that the matter would be heard on 16 November
2005 and he should arrange for someone to represent him, who need not necessarily
in the circumstances be a lawyer.
Mr Houston elected instead to send in a letter dated 13 November 2005 and I have
today disposed of the pursuer's incidental application on the basis that his
letter adequately states his position for this purpose. In his letter Mr Houston does not go so
far as to say that he wishes to abandon his appeal to the Sheriff Principal but
he does accept that he may have been following the wrong course in pursuing it
rather than a judicial review in the Court of Session."
The sheriff principal went on to
explain how an application for judicial review must be made.
[9] Notwithstanding
the explanation given in the Sheriff Principal's note dated 16 November 2005, the petitioner did not
seek to raise proceedings for judicial review under November 2006. On 28 November
2006 he was granted leave to proceed without a duly authorised
signature, in terms of Rule of Court 4.2(5). The petition was lodged on 8 December 2006, and a first
order was granted on 12 December
2006. Counsel then drew my
attention to photographs which were lodged on behalf of the respondents
(No.7/13 of process) which I was told were taken in January 2007 and show the
stage at which construction work on the proposed school campus has reached,
following upon demolition of the houses which were previously on the site
(including the house formerly owned by the petitioner at 12 Benston Place,
Johnstone).
[10] Against the history narrated above, counsel submitted that this
petition is incompetent by reason of paragraphs 15 and 16 of Schedule 1
to the 1947 Act. He submitted that even
if the compulsory purchase order is an absolute nullity, it cannot be
challenged in the courts outwith the six week period contained in
paragraph 15. In support of this
submission he referred me to Martin v
Bearsden & Milngavie District Council
1987 S.C. 80 and to Pollock v Secretary of State for Scotland 1993
S.L.T. 1173. The petitioner had been
actively involved at every stage of the statutory procedures, and the six week
time limit for applications to the Court of Session to be made had been drawn
to his attention on more than one occasion.
That time limit expired in early March 2005, and it was not open to the
petitioner to seek to challenge the Order in these proceedings which were initiated
in December 2006.
[11] Separately, counsel for the respondents founded on his plea of mora, taciturnity and acquiescence. The petitioner's property has been
demolished, and (as appears from the photographs) very considerable
construction works are underway on the site for a new shared school
campus. The petitioner has been aware of
all of this happening, and has taken no steps to challenge it or prevent it
from continuing. Counsel submitted that
it was hard to figure a more compelling case in which the absence of legal
proceedings has permitted parties to proceed, with the expenditure of
considerable sums of money, on the basis of an Order which is only now
challenged. In this regard counsel
referred me to Devine v McPherson 2002 S.L.T. 213 and in
particular to paragraphs 24 and 25 of Lord Eassie's Opinion. In the present proceedings two years have now
elapsed since the formal notice was served on the petitioner in January 2005. The petitioner has failed to avail himself of
the statutory procedures for review, and has delayed inordinately in bringing
forward this petition. Counsel moved me
to sustain his first two pleas-in-law.
Submissions for the Scottish Ministers
[12] Counsel for the Scottish
Ministers adopted the submissions made on behalf of the respondents and had
little further to add. She observed that
the petitioner had been involved throughout the statutory procedures, and had
caused objections on his own behalf to be made to the Order. He appeared at the Public Local Inquiry and
made submissions, he was properly informed of the result and of how challenge
to the decision might be made and he had not availed himself of the opportunity
provided by the statutory procedures to apply to this court. Counsel moved me to sustain the first and
second pleas-in-law for the Scottish Ministers.
Submissions for the petitioner
[13] The petitioner explained
that after the Public Local Inquiry he again consulted the solicitors who had
written on his behalf to object to the Order, but he could not afford the fees
which they indicated would be likely to be charged. The solicitor agreed to read the documents
which the petitioner gave him, and on the day before the six week period was
due to expire the petitioner received a letter from the solicitor telling him
that he could apply to the Court of Session.
The petitioner found great difficulty in understanding the procedures,
and accepted that he may have made mistakes.
He had telephoned people working for the Scottish Executive and had
received helpful advice from them.
However, his position remained that statements made by the respondents
in support of this Order were false. He
referred me to several maps of the area in which 12 Benston
Place was situated, which he claimed indicated
that the respondents had lied in their description of the houses affected. He referred me to minutes of the local
authority in 1954, and suggested that the respondents had committed fraud in
describing the area to suit their own purposes.
In this regard he drew my attention to Lord Clyde's review of the
authorities at page 84 of Martin v
Bearsden & Milngavie District Council,
and he submitted that bad faith verging on fraud is suggested in the present
case, so it could be distinguished from Martin. The petitioner accepted that he advanced the
same argument before the reporter at the Public Local Inquiry, and that the
reporter did not accept this argument.
However, he re-iterated the view that the respondents' scheme was
fraudulent, that Benston Place
had been 40% owner occupied and it was not of the character suggested by the
respondents. His solicitors wanted
payment of ฃ20,000 to enable an advocate to read the report of the Public Local
Inquiry and give advice, which the petitioner could not afford. The solicitor did not tell the petitioner
until just before the six week period had expired that he could make an
application to the Court of Session himself.
His house was demolished in April 2006.
[14] With regard to the question of delay in bringing these
proceedings, the petitioner explained that he had asked the court to postpone
the appeal hearing because his older brother who was unwell having been given
heart bypass surgery was living in a house in Australia which was about to be
demolished, and the petitioner had to travel to Australia to help him move
house. The petitioner had asked the
Sheriff Principal to postpone the hearing, and the Sheriff Principal had
indicated that this would be possible if the respondents agreed. The petitioner said that he had spoken to the
solicitor acting for the respondents who had agreed to a postponement, but then
another employee of the respondents had indicated that the construction works
could not wait and that the respondents would not agree to a postponement. The petitioner was evicted from his home
while he was in Australia. He had been told by the Sheriff and the
Sheriff Principal in September and November 2005 that he might be able to
apply for judicial review, but when he sought advice from the Petition
Department in the Court of Session he was told that he could not present a
petition because he was homeless.
Eventually East Ayrshire Council accepted the petitioner as homeless in
July 2006 and he obtained a house in September 2006. He then obtained all the information
necessary to present the petition, and was granted permission to proceed
without a duly authorised signature. The
petitioner had never been silent about this matter - he had objected forcefully
by telephone to the respondents' employees, and had taken as many steps as he
could to air his objections to the Order.
It was not his fault that the petition was not presented until
December 2006.
Discussion
[15] Paragraphs 15 and 16 of the
first schedule to the 1947 Act apply to the procedures surrounding the 2003
Order. It was open to the petitioner to
make an application to the Court of Session within six weeks of 19 January 2005 if he wished to
question the validity of the Order.
Subject to this provision, paragraph 16 provided:
"that a
compulsory purchase order ...shall not, either before or after it has been
confirmed, made or given, be questioned in any legal proceeding whatsoever and
shall become operative on the day on which notice is first published..."
The petitioner was made aware of
these provisions because a copy of the letter dated 9 December 2004 from the Scottish Executive
Education Department Schools Division to the respondents was sent to him and
paragraph 9 of that letter refers to paragraph 15 of the first
schedule to the Act of 1947. The provisions
of paragraph 15 were also contained in the notice which was sent to the
petitioner by the respondents with their letter dated 14 January 2005.
[16] The six week period referred to in paragraph 15 having
elapsed in early March 2005, it is not open to the petitioner to seek to
challenge the 2003 Order, and the present petition is rendered incompetent by
reason of paragraph 16 of schedule 1 to the 1947 Act. As Lord Clyde observed in Martin v Bearsden & Milngavie District Council (at page 88), when referring
to the well known dicta of Viscount Simonds in Smith v East Elloe Rural D.C. [1956] A.C.736 and of Lord Denning M.R.
in R v Secretary of State for the Environment ex p. Ostler [1977] Q.B.122,
"there was
recognition of the policy of Parliament in relation to compulsory purchase
orders that finality and security from challenge should be achieved in the
public interest. The intention of
para.16 is in my view to exclude the kind of challenge which is made in the
present case outwith the time limit expressly prescribed for the making of just
such a challenge".
[17] In Pollock v Secretary of State for Scotland Lord
Cameron of Lochbroom reached the same view in relation to the similar
provisions of sections 231 and 233 of the Town & Country Planning (Scotland)
Act 1972 which he described as "clear in their meaning and bar any challenge
from whatever source it may come after the period of six weeks has passed after
the taking of the decision of the Secretary of State on the appeal". The petitioner sought to argue that the
present case should be distinguished from the cases of Martin and Pollock
because the present case alleges bad faith amounting to fraud on the part of
the respondents. However, there are no
averments of fraud or bad faith in the petition. It has long been recognised in our procedures
that if a party is to allege bad faith or fraud on the part of another he must
do so by the clearest and most specific averments. While I make allowance for the fact that the
petitioner is a party litigant, nonetheless there are no averments whatsoever
in the petition which might amount to a relevant case of fraud or bad
faith. The first plea in law states the
petitioner's reasons for seeking reduction of the 2003 Order as follows:
"(1) The decision of the Renfrewshire Council to
issue Compulsory Purchase Order 2003, being unreasonable et separatim unfair, this should be reduced as craved".
Even if it were appropriate for me
to do so, I cannot infer from the petition how the respondents are said to have
acted in bad faith or fraudulently.
Similarly when he was presenting his submissions in Court, the
petitioner referred to old maps and minutes of the respondents' predecessors,
but I remain unable to understand how it is that the respondents are said to
have acted fraudulently in promoting this Order. The petitioner accepted that he had made
similar arguments before the reporter and these had been unsuccessful.
[18] Nothing in the petition nor in what was said by the petitioner
in court persuaded me that this case falls to be considered differently from
the cases of Martin v Bearsden & Milngavie District Council
and Pollock v Secretary of State for Scotland.
I consider that this case falls within the ambit of paragraphs 15
and 16 of the 1947 Act, and that the present petition is incompetent because it
is brought after the expiry of the six week period referred to therein.
[19] I also consider that the second argument advanced on behalf of
the respondents and the Scottish Ministers is sound. I do not consider that the sequence of events
relied upon by the petitioner to justify the delay in bringing these
proceedings is sufficient to excuse this delay.
It is clear that the petitioner was aware of the existence of the remedy
of judicial review when he appeared before the Sheriff at Paisley
on 2 September 2005. Again, it appears from the terms of the
Sheriff Principal's note appended to his interlocutor of 16 November 2005 that the petitioner was
considering judicial review. (The
petitioner's letter dated 13 November
2005 was not before me, but the Sheriff Principal gives a flavour
of the contents of that letter in his note).
In circumstances in which the petitioner had allowed the six week period
which expired in March 2005 to elapse without taking any action, and he
was aware of the existence of judicial review as a remedy which might possibly
be open to him by September 2005, I do not consider that it was open to
him to challenge the 2003 Order for the first time in Court in proceedings
initiated in December 2006. In the
period between March 2005 and December 2006 the respondents executed a
general vesting declaration which affected the petitioner's property; the respondents raised proceedings for
recovery of possession of the house in which the petitioner was living, which
proceedings the petitioner defended; the
Sheriff granted decree against the petitioner, and this was upheld on
appeal; the petitioner was removed from
the house, which was then demolished;
and very substantial construction works were commenced and significant
expenditure has been made on the development of a shared school campus on the
site, as appears from the photographs (No.7/13 of process). At no time during this sequence of events has
the petitioner sought to interdict the respondents nor has he brought a formal
challenge to the 2003 Order until the bringing of this petition in
December 2006.
[20] Lord Eassie's observations in Devine v McPherson appear
equally apposite in the present case.
That was a case in which a group of individuals sought judicial review
of the decision of a local planning authority granting outline planning
permission for the erection of a house.
Planning permission was granted on 13 December 2000, and the group of objectors raised
a petition for judicial review on 31 July
2001 (a period of seven and a half months, in contrast to the
period of more than one year and ten months in the present case). The court sustained the respondents' plea of mora.
Lord Eassie observed that
"where an
objector wishes to challenge by means of judicial review, the validity of a
decision of a local planning authority granting a planning consent there is a
need for the objector to act with alacrity otherwise he risks finding his
challenge successfully barred by a plea of mora."
He went on to state that
"in the field of
administrative activity with which one is presently concerned, such delay or
inactivity, which is not justified by any conceivable practical consideration,
falls to be regarded as unreasonable. In
my view, the respondents - and no doubt others - were entitled to infer from
such inactivity on the part of those who had objected to the grant of outline
planning consent that they acquiesced in the validity of the decision".... "It
appears to me that in the light of the absence of any indication of an
intention to challenge the validity of the grant of the outline planning
consent the McPhersons have indeed materially altered their position and would
be prejudiced - in a legally relevant sense - were the grant now to be annulled."
[21] In the present case there is no doubt that the petitioner was
unhappy with the steps which the respondents were taking regarding his
house. He objected to the
2003 Order. He defended the Sheriff
Court proceedings.
He did not move out of the house voluntarily. He mentioned the possibility of proceedings
for judicial review. However, despite
all the events which occurred such as his eviction from the house, the demolition
of the house and the progress with construction works, he allowed a period of
more than one year and ten months to elapse before mounting a formal legal
challenge to the 2003 Order. During
that period the respondents have expended considerable amounts of money and
effort in reliance on the 2003 Order;
they have materially altered their position in reliance on the
unchallenged Order, and they would be prejudiced were the Order now to be
reduced. It has been repeatedly stated
that judicial review is a remedy which must be sought expeditiously, and it is
not open to persons dissatisfied with a decision if they delay
unreasonably. In the present case, while
I understand the history given to me by the petitioner, I do not consider that
it justifies the delay which has occurred, nor does it render that delay
reasonable. Moreover, it is necessary to
look not only to the petitioner's explanation for the delay, but also to the
steps which the respondents have taken in the course of that delay in reliance
on the unchallenged order. As I have
said, they have incurred substantial expenditure and would suffer prejudice if
the Order is reduced.
[22] Accordingly I shall sustain the first and second pleas in law
for both the respondents and the Scottish Ministers, and dismiss the petition.
