Purchase notice — Section 170 of the Town and Country Planning (Scotland) Act 1972 — Purchase notice served within 12 months of planning appeal decision — Whether planning refusal or planning appeal decision is decision for purposes of time-limit — Whether petitioner timeously served purchase notice on council — Claimant deleting part of purchase notice — Whether purchase notice invalid
The respondent council refused the petitioner’s application for
outline planning permission by a decision letter dated 21 December 1993. The
Secretary of State, by his reporter, dismissed the petitioner’s appeal on 13
December 1994. In February 1995 the petitioner served a purchase notice under
section 169 of the Town and Country Planning (Scotland) Act 1972 on the
council, requiring them to purchase her interest in the affected land. The
petitioner deleted para (c) of the form of the purchase notice, which was to
the effect that the land could not be rendered capable of reasonably beneficial
use by the carrying out of any development for which planning permission had
been granted or for which the local planning authority or the Secretary of
State had undertaken to grant planning permission. The petitioner left para (a)
of the form standing, as it was to the effect that the land had become
incapable of reasonable beneficial use. By a letter dated 3 May 1995, the
council contended that the purchase notice was invalid on the grounds that: (1)
the date of the purchase notice was over 12 months from the date of the
council’s decision in December 1993; and, (2) para (c) of the notice being
deleted, the petitioner had failed to satisfy a relevant requirement for a
valid purchase notice. Having taken the position that the land was capable of
reasonable beneficial use and that the notice was invalid, the council did not
serve a counternotice. The petitioner challenged that decision on the basis
that the purchase notice was timeous and valid in the terms of section 169.
the council’s decision of 3 May 1995 was reduced.
The purchase notice was
timeously served. The date from which the 12 months run, in terms of the Town
and Country Planning (General) (Scotland) Regulations 1976, 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 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 1976 regulations are concerned is thus, clearly, the refusal of
permission, or grant subject to conditions. 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 an appeal is made, the
application for planning permission has not been disposed of. The reporter, in
his letter of 13 December 1994, could have granted planning permission or
permission subject to conditions; that must be a ‘decision’ for the purposes of
the 1976 Regulations: see p93E. The 12-month period therefore ran from the date
of the appeal decision. The deletion of para (c) of the purchase notice, and
therefore the failure to provide all information required by section 169(1),
did not render the purchase notice invalid. The notice was simply a requirement;
there might be any number of reasons for not wishing to comply with it. 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 upon which the parties might differ, to
join issue in the appropriate forum, which was before the Secretary of State.
Even if the council 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 invalid. The fact that para (c) appeared on, but had been
deleted from, the form used by the petitioner is insufficient to reduce the
status of the purchase notice to that of being effectively a nullity.
Altherton v Strathclyde 1995 SLT 557
Assets Company Ltd v Bain’s Trustees 1904 6 F 692
Carlton v Glasgow Caledonian University 1994 SLT 549
Carswell v Dairy Quota Produce Tribunal [1990] 2 AC
738
Hanlon v Traffic Commissioner 1988 SLT 802
Kwik Save Stores Ltd v Secretary of State for Scotland
1999 SLT 193
London & Clydeside Estates Ltd v Aberdeen District
Council [1980] 1 WLR 182; [1979] 3 All ER 876; (1979) 39 P&CR 549;
[1980] 1 EGLR 11; [1980] EGD 207; 253 EG 1011, 1980 SLT 81; 1980 SC 1; HL
Miller-Mead v Minister of Housing and Local Government [1963]
2 QB 196; [1963] 2 WLR 225; [1963] 1 All ER 459; (1963) 61 LGR 152; 14 P&CR
266; [1963] EGD 572; 185 EG 835; [1963] JPL 151, CA
O’Reilly v Mackman [1983] 2 AC 237; [1982] 3 WLR
1096; [1982] 3 All ER 1124, HL
Perfect Swivel Ltd v City of Dundee District Licensing
Board (No 2) 1993 SLT 112, OH
Swan v Secretary of State for Scotland 1998 SC
479; 1998 SCLR 763; [1998] 2 CMLR 1192; [1998] Env LR 545
Judicial review
This was a petition by Muriel Reside (AP) for judicial review of
the failure by North Ayrshire Council to fulfil their statutory duties to
acquire compulsorily her heritable interest under section 170 of the Town and
Country Planning (Scotland) Act 1972.
appeared for the petitioner, Muriel Reside (AP).
represented the respondents, North Ayrshire Council
LORD PROSSER: 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 were 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.
In 1989 the petitioner acquired an area of ground extending to
0.777ha 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 0.777ha that lay behind them. No further subdivision
was shown. In August 1991 outline permission was granted, subject to various
conditions.
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 subdivided 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.
On 4 October 1993 the petitioner submitted a further revised
application for outline permission for the 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.
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:
1. That the proposed development would be contrary to policy POL19
in the Adopted Isle of Arran Local Plan in that it would constitute residential
development in the countryside for which no site specific need has been
demonstrated.
2. In the Finalised Isle of Arran Replacement Local Plan the area
is identified as countryside and the proposed development would be contrary to
policy HOU5, which limits development in countryside areas to that required to
meet a justified need, in the Finalised Isle of Arran Replacement Local Plan.
3. That the siting of, and means of access to, the proposed
dwelling-houses would result in an urban form of development which would be
detrimental to the character and appearance of this rural area.
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.
This petition for judicial review does not question the validity or
propriety of any of the matters that I have set out, and the petitioner did not
appeal to the Court of Session against the decision of 13 December 1994. The
matters that 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.
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:
(1) Where, on an application for planning permission to develop
any land, permission is refused or is granted subject to conditions, then if
any owner or lessee of the land claims —
(a) that the land has become incapable of reasonably
beneficial use in its existing state; and
(b) in a case where planning permission was granted subject
to conditions, that the land cannot be rendered capable of reasonably
beneficial use by the carrying out of the permitted development in accordance
with those conditions; and
(c) in any case, that the land cannot be rendered capable
of reasonably beneficial use by the carrying out of any other development for
which planning permission has been granted or for which the local planning
authority or the Secretary of State has undertaken to grant planning
permission,
he may, within
the time and in the manner prescribed by regulations under this Act, serve on
the local planning authority in whose district the land is situated a notice
requiring that authority to purchase his interest in the land in accordance
with the following provisions of this Part of this Act.
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:
(1) The local planning authority on whom a purchase notice is
served under section 169 of this Act shall, before the end of the period of
three months beginning with the date of service of that notice, serve on the
owner or lessee by whom the purchase notice was served a notice stating either
—
(a) that the local planning authority are willing to comply
with the purchase notice; or
(b) that another local authority or statutory undertakers
specified in the notice under this subsection have agreed to comply with it in
their place; or
(c) that, for reasons specified in the notice under this
subsection, the local planning authority are not willing to comply with the
purchase notice and have not found any other local authority or statutory
undertakers who will agree to comply with it in their place, and that they have
transmitted a copy of the purchase notice to a Secretary of State, on a date
specified in the notice under this subsection, together with a statement of the
reasons so specified.
…
(3) Where the local planning authority on whom a purchase notice
is served by an owner or lessee propose to serve on him a notice in accordance
with subsection (1)(c) of this section, they shall transmit a copy of
the purchase notice to the Secretary of State, together with a statement of
their reasons.
(4) Where the local planning authority on whom a purchase notice
is served by an owner or lessee do not, within the period specified in
subsection (1) of this section, serve on him a notice under that subsection,
the purchase notice shall be deemed to be confirmed at the expiration of that
period, and the authority shall 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 the said period.
Regulation 4 of the Town and Country Planning (General) (Scotland)
Regulations 1976 (SI 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.
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.
By a 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 that had been served upon them under section 169 so as to
give rise to the requirements of section 170(1).
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.
The parties were agreed that the principles upon which a plea of
bar based upon mora might be upheld were to be found in Assets
Company Ltd v Bain’s Trustees 1904 6 F 692, and, in particular, the
Lord President’s observations at p705:
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.
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 eight 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 that can be regarded as attributable
to the council, but, from October 1996 until June 1997, one has a further
period of about eight 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 that 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 their
position had been materially altered or that it had been prejudiced as stated
in Assets Company Ltd, a general detriment to good administration could
suffice, in the context of judicial review, even if there were no more
particular prejudice to the local authority.
I was referred by counsel for the parties to a considerable number
of cases, including Swan v Secretary of State for Scotland 1998
SC 479; Kwik Save Stores Ltd v Secretary of State for Scotland
1999 SLT 193; Perfect Swivel Ltd v City of Dundee District Licensing
Board (No 2) 1993 SLT 112; Hanlon v Traffic Commissioner 1988
SLT 802; Altherton v Strathclyde 1995 SLT 557; O’Reilly v Mackman
[1983] 2 AC 237; Carswell v Dairy Quota Produce Tribunal [1990] 2
AC 738; and Carlton v Glasgow Caledonian University 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.
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 compares 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.
I also reject the council’s contention that the purchase notice was
served out of time. The date from which the 12 months run, 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 that 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 leads me to think that there is any doubt upon the matter.
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 that would apply would be 12 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.
I turn, therefore, to the other main issue, as to whether the
deletion of para (c) on the purchase notice, or the absence from the purchase
notice of any claim in terms of para (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
subsection to serve on the petitioner, before the end of three months, a notice
of the type specified in that subsection.
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 precondition 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 none the less a purchase notice? Or
is it simply not a purchase notice because of the defect?
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 have dealt with any reason
that 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 that 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 upon 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 that
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.
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 pP137-06), 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 Ministry
of Housing and Local Government [1963] 2 QB 196, Upjohn LJ at pp225 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 they were 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.
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 & Clydeside Estates Ltd v Aberdeen District
Council 1980 SC 1 at pp30-31. The relevant observations cover more than one
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
that 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 as having no legal
consequences’ upon the authority.
I am puzzled that, in this case, the local authority, in reliance
upon their view about time requirements and the significance of the deletion of
para (c), abstained from serving a notice, in accordance with subsection
(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 upon doing
nothing strikes me as odd.
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 that 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 para (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).
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 0.777ha, 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 0.777ha, 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.
On behalf of both sides, certain submissions were made as to
alternative courses that 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.
Declarators granted and council’s decision reduced.
