EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Emslie Lord Menzies	[2012] CSIH 79 XA68/12 XA69/12 XA70/12 OPINION OF THE COURT delivered by LORD MENZIES in appeals under section 29(1) of the Land Compensation (Scotland) Act 1963 by SCOTTISH BORDERS COUNCIL Appellant; against A Decision of a Reporter in the Directorate for Planning and Environmental Appeals on behalf of the Scottish Ministers dated 16 March 2012 _______________

Act: R N Thomson, QC; Motion, solicitor advocate; BTO

Alt (The Scottish Ministers): Richardson; Scottish Government Legal Directorate

9 October 2012

Introduction

[1] The appellant in these appeals is an authority possessing compulsory purchase powers under the Waverley Railway (Scotland) Act 2006. It served notice under that Act of its intention to acquire certain areas of land in Midlothian. Applications were submitted on behalf of parties having an interest in the lands in question to Midlothian Council for a Certificate of Appropriate Alternative Development ("CAAD") under section 25 of the Land Compensation (Scotland) Act 1963 ("the 1963 Act") in respect of the land. A CAAD was issued by Midlothian Council under section 25(4)(a) of the 1963 Act in respect of each of the areas of land to the effect that planning permission would have been granted for residential, and in one case, business purposes as at 13 September 2003.

[2] In terms of section 26 of the 1963 Act and article 4 of the Land Compensation (Scotland) Development Order 1975 (SI 1975 No 1287) ("the 1975 Order") agents for the appellant gave notice of appeal against each CAAD on 19 October 2011. By letter dated 27 October 2011 the Directorate for Planning and Environmental Appeals (the "DPEA") requested the appellant's agents to forward, not later than one month from the date of the letter, a copy of the applications for a CAAD made to Midlothian Council, a copy of the certificates issued by the Council and the grounds of appeal, all as required by article 4 of the 1975 Order. Following receipt of a letter from agents for the applicants taking issue with the validity of the notice of appeal, DPEA told the appellant's agents that they would be informed of a new date for submitting grounds of appeal after the issue of validity had been considered.

[3] By letter dated 17 January 2012 the DPEA intimated its decision that the notice of appeal was valid, and requested the appellant to submit the statement of grounds of appeal and supporting documentation within one month of that date. On 14 February 2012 agents for the appellant submitted grounds of appeal and supporting documentation in the form of a planning assessment and ownership documentation. They did not furnish the DPEA with copies of the applications to the planning authority, nor the certificates issued by the planning authority.

[4] By letter dated 20 February 2012 addressed to the agents for the applicants for the CAAD, the DPEA invited responses to the grounds of appeal and requested that they provide copies of the application for the CAAD. In response, agents for the applicants by email dated 27 February 2012, contended that the appellant had failed to comply with article 4(3) of the 1975 Order in relation to furnishing copies of the applications and the CAAD's. They submitted that the appeals should be treated as withdrawn in terms of article 4(4).

[5] By emails dated 27 and 29 February 2012 agents for the appellant submitted that the appeals should not be treated as withdrawn; it was argued that while the original requirement in the DPEA letter dated 27 October 2011 had been suspended, it had not been re-imposed in respect of the applications and the certificates, the letter dated 17 January only referring to grounds of appeal and supporting documentation. The appellant's agents also pointed out that the applications and the CAAD's were in the public domain on Midlothian Council's website, that copies of each CAAD had been supplied by the applicants' agents with their letter dated 3 November 2011, and that the DPEA had, by their letter dated 20 February 2012, requested the applicants to provide copies of the application.

[6] By letter dated 16 March 2012 the DPEA issued the reporter's decision on the matter. This letter stated inter alia that

"the reporter has concluded, notwithstanding the terms of the letter of 20 February 2012, that regulation 4(3) is mandatory and that there is no discretion to extend the one month period that was allowed on 17 January. Accordingly, regulation 4(4) applies and the appeals are being treated as withdrawn."

[7] It is against this decision that these proceedings are directed. The appellant argues that the reporter erred in law in deciding that article 4(3) was engaged in respect of the application and the CAAD and that the appeal required to be treated as withdrawn in terms of article 4(4).

[8] The Scottish Ministers have lodged answers to the appeals on their merits. They have also objected to the competency of the appeals, on the basis that the reporter's decision was not the determination of the appellant's appeals under section 26 of the 1963 Act, and that accordingly no appeal lies in terms of section 29 of the 1963 Act against this decision. We have now heard submissions on behalf of the appellant and the Scottish Ministers on that initial question of competency.

The relevant statutory framework

[9] The 1963 Act contains the following provisions which have some relevance to the issue of competency:

"25. - Certification of appropriate alternative development

(1) Where an interest in land is proposed to be acquired by an authority possessing compulsory purchase powers, either of the parties directly concerned may, subject to subsection (2) of this section, apply to the planning authority for a certificate under this section.

...

(4) Where an application is made to the planning authority for a certificate under this section in respect of an interest in land, the planning authority shall, not earlier than twenty-one days after the date specified in the statement mentioned in subsection (3)(c) of this section, issue to the applicant a certificate stating that, in the opinion of the planning authority in respect of the land in question, either -

(a) planning permission would have been granted for development of one or more classes specified in the certificate (whether specified in the application or not) and for any development for which the land is to be acquired, but would not have been granted for any other development; or

(b) planning permission would have been granted for any development for which the land is to be acquired, but would not have been granted for any other development,

...

(7) In determining, for the purposes of the issue of a certificate under this section, whether planning permission for any particular class of development would have been granted in respect of any land, the planning authority shall not treat development of that class as development for which planning permission would have been refused by reason only that it would have involved development of the land in question (or of that land together with other land) otherwise than in accordance with the provisions of the development plan relating thereto.

26.- Appeals against certificates under s.25.

(1) Where the local planning authority have issued a certificate under section 25 of this Act in respect of an interest in land, -

(a) the person for the time being entitled to that interest; or

(b) any authority possessing compulsory purchase powers by whom that interest is proposed to be acquired,

may appeal to the Secretary of State against that certificate.

(2) On any appeal under this section against a certificate the Secretary of State shall consider the matters to which the certificate relates as if the application for a certificate under section 25 of this Act had been made to him in the first instance, and shall either confirm the certificate, or vary it, or cancel it and issue a different certificate in its place, as he may consider appropriate.

(3) Before determining any such appeal the Secretary of State shall, if any such person or authority as is mentioned in subsection (1)(a) or subsection (1)(b) of this section so desires, afford to each such person or authority and to the local planning authority an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

29.- Proceedings for challenging validity of decision on appeal under s. 26.
(1) If any person aggrieved by a decision of the Secretary of State under section 26 of this Act or the local planning authority desires to question the validity of that decision on the ground that it is not within the powers of this Act or that any of the requirements of this Act or of a development order or of the Tribunals and Inquiries Act 1971 or rules made thereunder have not been complied with in relation to it, that person or authority may, within six weeks from the date of the decision, make an application to the Court of Session, and the Court of Session -

(a) may by interim order suspend the operation of the decision until the determination of the proceedings;

(b) if satisfied that the decision is not within the powers of this Act or that the interests of the applicant have been substantially prejudiced by a failure to comply with the said requirements, may quash the decision.

(2) Subject to subsection (1) of this section, the validity of a decision on an appeal under section 26 of this Act shall not be questioned in any legal proceedings whatsoever.

(3) Nothing in this section shall affect the exercise of any jurisdiction of any court in respect of any refusal or failure on the part of the Secretary of State to give a decision on an appeal under section 26 of this Act."

[10] In addition, article 4 of the 1975 Order is relevant and is in the following terms:

"4.- Appeals

(1) The time for giving notice of an appeal under section 26 shall be within one month of:-

(a) the date of receipt of the certificate, or

(b) the expiry of the time or extended period mentioned in subsection (4) of that section, as the case may be.

(2) Notice of appeal shall be given in writing to the Secretary of State and a copy of such notice shall be sent by the appellant to the other of the parties directly concerned, to the regional planning authority within the area of which is situated the land to which the certificate relates, and to the planning authority who issued the certificate under section 25 or, where no certificate has been issued, to the planning authority to whom the application was made.

(3) The appellant shall within one month of giving notice of appeal, or such longer period as the Secretary of State may in any particular case allow, furnish to the Secretary of State one copy of the application to the planning authority, and of the certificate (if any) issued by the planning authority together with a statement of the grounds of appeal.

(4) If an appellant does not within the time limited under the last preceding paragraph furnish to the Secretary of State the copies of the documents thereby required, the appeal shall be treated as withdrawn."

Submissions for the Scottish Ministers

[11] Mr Richardson for the Scottish Ministers adopted his written Note of Argument (No 12 of process). His point was a short one. An appeal to the Court of Session under section 29 of the 1963 Act is available only in respect of decisions made under section 26. In terms of section 26(2), a decision shall either confirm the certificate, or vary it, or cancel it and issue a different certificate in its place. The letter from the reporter dated 16 March 2012 did none of these things. Section 29 draws a distinction between decisions under section 26 on the one hand, and the refusal or failure to issue a decision on the other. The mechanism for questioning the validity of a section 26 decision is contained in section 29(1), and section 29(2) makes it clear that this is the only basis for making such a challenge. By contrast, section 29(3) preserves the ordinary jurisdiction of the court in respect of any refusal or failure to give a decision.

[12] The reporter's treatment of the appeal as withdrawn in terms of article 4 of the 1975 Order does not amount to a decision under section 26; instead, it represents the refusal or failure of the reporter to give such a decision. The appellant cannot therefore avail itself of the present procedure to appeal to the court, but must present a petition for judicial review.

[13] Counsel submitted that there was no significance in the use of the word "determining" in section 26(3), rather than a term such as "reaching a decision on". On the contrary, the use of the word "determining" in section 25(7) supported his construction of section 26; subsection (3) is concerned with the process which is required before any decision is reached, but it is only the decision which may be appealed under section 29(1). Looking to the whole scheme of the 1963 Act and the 1975 Order, the natural construction is that treating an appeal as being withdrawn amounts to a refusal or failure to give a decision, and is not itself a decision under section 26. Counsel sought support for his position (albeit in the English statutory framework) from the Law of Compulsory Purchase (2^nd Edition) edited by Roots & Humphries at para [827].

Submissions for the appellant

[14] Senior counsel for the appellant adhered to the arguments contained in his Note of Argument (No 11 of process). He submitted that, on a proper construction of section 29(1) of the 1963 Act, the decision to treat the appeal as withdrawn in terms of article 4(4) of the 1975 Order is a decision "under section 26" of the 1963 Act. This appeal process is accordingly competent. The appellant had lodged appeals with the DPEA, and the time limits for lodging documents set down by the reporter had not lapsed. The reporter considered the application and decided that the appeals fell to be treated as withdrawn. That was a decision by her, and she says as much in the final paragraph of her letter. This was a decision on appeal under section 26. There has been no refusal or failure by the Scottish Ministers to give a decision, because reaching a conclusion, and giving a decision, is what the reporter did. If the argument for the respondents were correct, the appellant would be left with no remedy, as not falling within either subsection (1) or subsection (3) of section 29. That is inconsistent with the scheme of the Act; Parliament cannot have intended that a party whose appeal has been dismissed on an unjustified procedural basis should have no right of review.

[15] Senior counsel pointed to several factors which supported his proposition that the reporter's letter dated 16 March 2012 was a decision for the purpose of section 29(1). First, the scheme of section 29 and its relationship with section 26 supported this view. Section 29 has a heading "Proceedings for challenging validity of decision on appeal under section 26"; provided that the decision related to an appeal under section 26, it was open to challenge by this method. It is the nature of the appeal - ie an appeal under section 26 - which gives rise to the right to challenge in the Court of Session. A decision in relation to such an appeal is challengeable. This construction makes sense when the section is looked at as a whole; the scheme of the section is that where the Secretary of State fails to make a decision, section 29(3) applies, but if a decision is made in relation to a section 26 appeal, section 29(1) applies. The reference in section 26(2) to confirming, varying or cancelling the certificate makes sense in its own context, but does not support the respondents' restricted construction of the scope of section 29(1). Moreover, there is no rationale for the restricted construction of section 29(1) favoured by the respondents; the section is focussed on whether a decision is ultra vires or taken in breach of procedures, to the prejudice of the appellant. There is no reason why this should be subject to challenge only after the reporter has examined the facts and reached a final determination. The terms of section 29(1)(b) do not support the narrow construction urged by the respondents.

[16] Senior counsel submitted that the construction favoured by the appellant was consistent with the legislative history of these provisions. He drew attention to the Town and Country Planning Act 1959, sections 5 and 6 of which were substantially identical to sections 25 and 26 of the 1963 Act. Although section 31 made provision for challenging the validity of a much wider range of orders and decisions than section 29 of the 1963 Act, subsection (4)(f) conferred a right on any person aggrieved by any decision of the Minister on an appeal under section 6 of the 1959 Act to apply to the court. This would clearly have afforded the appellant a right of appeal in the present circumstances; it cannot be inferred that Parliament intended to remove that right and not to confer any alternative right on the appellant. Thereafter, provisions for land compensation were removed from planning legislation and provision was made in separate legislation - in England, section 21 of the Land Compensation Act 1961 is equivalent to section 29 of the 1963 Act. Both the 1961 and the 1963 Acts were in implement of the recommendations of the Franks Committee on Administrative Tribunals and Enquiries; senior counsel referred to paragraphs 107, 355 and 359 of that report and observed that there was nothing there to support the restrictive construction favoured by the respondents. In particular, there was no hint that the right of appeal to the courts should be confined to circumstances where there has been a hearing on the facts.

[17] Mr Thomson began a review of authorities with a reference to R v Secretary of State for the Environment ex parte Ward & others (unreported, 17 October 1994), but only for the purpose of observing that it offered no assistance (an observation with which Mr Richardson agreed). Co-operative Retail Services Ltd v Secretary of State for the Environment [1980] 1 WLR 271 was also of little consequence. However, Chalgray Ltd v Secretary of State for the Environment (1977) 33 P & CR 10, although concerned with a different statute, was of assistance. That case was concerned with whether, if the Secretary of State declined to consider an appeal, that can be a decision for the purposes of section 242(3)(b) of the Town & Country Planning Act 1971. Slynn J (as he then was) held that it was such a decision, and Mr Thomson submitted that we should adopt the same approach in the analogous circumstances of the present case. He also relied on the decision of the Court of Appeal in Button v Jenkins [1975] 3 All ER 585. The circumstances in that case were directly analogous to the present circumstances, and Mr Thomson urged us to adopt the same approach. The only Scottish authority in which similar issues were discussed was Cala Management Ltd v The Scottish Ministers 2002 SC 42 which, although not directly in point, gave some support to the appellant's position.

[18] For these reasons, senior counsel invited us to hold that the appeal was competent, and to allow these proceedings to continue.

Reply for the respondents

[19] Mr Richardson submitted that it was wrong to suggest that if the present proceedings were incompetent, the appellant would be left without a remedy - the appropriate remedy was judicial review, which was expressly preserved by section 29(3) of the 1963 Act. The English legislation and authorities should be approached with caution; the wording of the statutes referred to was materially different from the 1963 Act, and the different status of judicial review in England and in Scotland needed to be borne in mind. Nothing in the Franks Report supported the appellant's submission that a wide approach to appeals under section 29(3) should be adopted. Not only was the case of Chalgray concerned with a different statute, but if it had any relevance in the present context it supported the respondents' construction.

Discussion

[20] We have reached the view that, on a proper construction of the provisions of the 1963 Act as a whole, and of section 29 in particular, it is competent for the appellant to bring this appeal before the court to challenge the decision of the reporter dated 16 March 2012. The decision by the reporter to treat the appeal as withdrawn in terms of article 4(4) of the 1975 Order is in our view properly categorised as a decision under section 26 of the 1963 Act. As its heading indicates, section 29 provides the mechanism for challenging the validity of a decision on an appeal under section 26. Ex facie any such decision is covered, and we see no justification for confining the scope of the section to a decision confirming, varying or cancelling the certificate after a hearing in terms of section 26(3). A decision that an appeal shall be treated as withdrawn is every bit as conclusive of the proceedings as a decision to confirm, vary or cancel a certificate following upon a hearing. Prima facie subsections (2) and (3) of section 29 might be expected to cover all possible outcomes on an appeal under section 26, and it would be surprising, to say the least, if Parliament had intentionally made no provision to cover a potentially important category of decisions. It is a decision on an appeal under section 26 of the 1963 Act. It would in our view be straining the language of Section 29(3) to categorise the reporter's letter dated 16 March 2012 as a refusal or failure to give a decision on an appeal under section 26 of the Act.

[21] We agree with the submission by senior counsel for the appellant that there is no rationale for confining proceedings under section 29(1) of the 1963 Act to determinations which have been reached following a hearing. Prima facie subsections (2) and (3) of section 29 might be expected to cover all possible outcomes on an appeal under section 26, and it would be surprising, to say the least, if Parliament had intentionally made no provision to cover a potentially important category of decisions. The result of the reporter's decision of 16 March 2012, if unchallenged, would be that there would be no hearing, and therefore no final determination. The decision of 16 March 2012 cannot be categorised as a refusal or failure to give a decision; if the respondents' submissions were correct, in such circumstances there would be no right of challenge. This was not the case when the matter was governed by the Town and Country Planning Act 1959, and we agree with senior counsel for the appellant that it cannot be concluded that when the provisions on compensation were put into a separate statute Parliament intended to remove such a remedy from parties in the position of the appellant, without giving them an alternative remedy.

[22] The view which we have reached is consistent with the ratio of Chalgray Ltd v Secretary of State for the Environment. While it is correct to observe that that case was concerned with a different statute, a very similar issue arose in it. In that case the Secretary of State submitted that there had been no actual decision by him within the meaning of section 242(3)(b) of the Town and Country Planning Act 1971, because he held that the appeal was invalid and so he declined to decide it. It was held that the words in section 242(3)(b) "any decision of the Secretary of State on an appeal under section 36 of the Act" were not necessarily limited to the decisions or orders or final results specified in section 36(3), and that the Secretary of State's declining to consider the appeal was a decision on an appeal under section 36.

[23] The decision in Chalgray applied the earlier decision of the Court of Appeal in Button v Jenkins, in which there were clear similarities with the present proceedings. As was narrated by Kilner Brown J at page 589, a valid notice of appeal dated 13 September 1972 was lodged:

"On the 18^th September receipt of this notice was acknowledged, but the appellant was requested to submit a statement of facts. He never did. On 26 October 1972 the Secretary of State reminded him of this failure and stated that he was now unable to accept jurisdiction. In other words, he was saying that he regarded the appeal as having lapsed. That was a decision by the Secretary of State in proceedings on an appeal. It was then open to the appellant under section 246 to appeal to the High Court against the decision or to request the Secretary of State to state a case."

[24] Whilst we accept that each of these cases was concerned with a different statute from that with which we are concerned, the reasoning in each case relates to very similar wording, and is consistent with the view which we have taken of the effect of the Scottish statute. There is nothing in the only Scottish authority to which we were referred, namely Cala Management Ltd v The Scottish Ministers, which might provide support for the contention that an appeal to this court may only be made after a hearing, even if the effect of the decision by the reporter is to bring proceedings to an end without any hearing being held.

[25] In all the circumstances we are satisfied that an appeal may competently be made to this court in terms of section 29(1) of the 1963 Act against the decision of the reporter dated 16 March 2012. We shall therefore repel the objections to competency which have been taken by the Scottish Ministers in these three appeals. These appeals will now proceed as if no objection to competency had been taken, and a direction to that effect is accordingly given.