SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk Lady Smith Lord Philip

[2013] CSIH 64 XA68/12, XA69/12, XA70/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the appeals under Section 29(1) of the Land Compensation (Scotland) Act 1963 by NETWORK RAIL INFRASTRUCTURE LIMITED Appellants; against (FIRST) SCOTTISH MINISTERS; and (SECOND) GRANGE ESTATES (NEWBATTLE) LTD Respondents: in respect of decisions of a Reporter on behalf of Scottish Ministers dated 16 March 2012 _______________

Act: Lake QC; Maclay Murray & Spens LLP

Alt: Richardson; Scottish Government Legal Directorate

Alt: Armstrong QC; Anderson Strathern LLP

11 June 2013

Introduction

Statutory background

[1] Section 25 of the Land Compensation (Scotland) Act 1963 provides for the issue by a planning authority of certificates of appropriate alternative development in respect of land that it is to be acquired by compulsory purchase. Either party directly concerned in the acquisition may apply for a certificate. The application must specify any classes of development for which the land would be suitable, in the applicant's opinion, if it were not to be compulsorily purchased. The certificate may state either that planning permission would have been granted for one or more specified classes of development (whether contained in the application or not) and any development for which the land is to be acquired but no other (section 25(4)(a)) or that planning permission would have been granted only for any development for which the land is to be compulsorily acquired (section 25(4)(b)). The contents of the certificate will be highly relevant in the calculation of compensation payable.

[2] Parties have a right of appeal against a certificate (section 26), whereupon the first respondents shall consider matters as if the application had been made to them in the first instance (section 26(2)). As a result of an appeal, a certificate may be confirmed, varied or cancelled or a different certificate may be issued in its place (ibid). A further right of appeal lies to the court (section 29(1)) and the decision of the first respondents may be quashed if it was made ultra vires the 1963 Act or where the interests of the applicant have been substantially prejudiced by any failure to comply with requirements of the Act or any Development Order made thereunder (ibid).

[3] Article 4 of the Land Compensation (Scotland) Development Order 1975 states:

"(3) The appellant shall within one month of giving notice of appeal, or such longer period as the [Scottish Ministers] may in any particular case allow, furnish to the [Scottish Ministers] 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 [Scottish Ministers] the copies of the documents thereby required, the appeal shall be treated as withdrawn."

Factual background

[3] The appellants are the successors of the Scottish Borders Council in respect of the compulsory purchase powers conferred by the Waverley Railway (Scotland) Act 2006. The first appeal concerns a certificate obtained on behalf of the Walker Group in respect of land to the east of New Star Bank, Newtongrange. The certificate states that planning permission would have been granted for residential development. The second appeal concerns a certificate obtained on behalf of the second respondents in respect of a cycle path to the east of Westfield Park, Eskbank. The certificate states that planning permission would have been granted for both residential and business purposes. The third appeal concerns a certificate obtained on behalf of the Walker Group, the second respondents and others in respect of land at Hardengreen, Hardengreen Service Road, Dalkeith. The certificate states that planning permission would have been granted for use of the subjects for dwelling houses and flatted dwellings. All three certificates were issued under section 25(4)(a) of the 1963 Act. By Notice of Appeal dated 19 October 2011, the appellants appealed to the first respondents on the basis that the certificates ought to have been issued under section 25(4)(b). The appellants wish to have those decisions quashed.

The Reporter's decision

[5] By letter dated 27 October 2011, in response to the appellants' notice of appeal, the Reporter issued a letter containing the following instructions in respect of each appeal:

"As required by Article 4 of the Land Compensation (Scotland) Development Order 1975 please forward, as soon as possible, and in any event not later than one month from the date of this letter, a copy of the application made to Midlothian Council, a copy of the Certificate issued by Midlothian Council and a statement of the grounds of appeal.

In this respect please note that if the outstanding documentation is not submitted the appeal is required to be treated as withdrawn. You should therefore deal with this point as a matter of urgency".

By letter dated 3 November 2011, agents for the second respondents and others submitted that the appeals were invalid and incompetent by reason, amongst others, of being out of time. For present purposes, it is sufficient to note that copies of the three certificates at issue were furnished to the Reporter with that letter.

[6] By e-mail dated 14 November 2011, the Reporter confirmed the procedural position to the appellants as follows:

"We are currently looking into whether these appeals are valid. In the meantime, I can confirm that we will inform you of a new date for submitting grounds of appeal once we inform you of the result of our considerations".

Subsequently, by letter dated 17 January 2012, the Reporter confirmed that:

"...notice of appeal in relation to [the] certificates ... was given within one month of their receipt and is, accordingly, in time.

Accordingly, the appellants are requested to submit the statement of their grounds of appeal and supporting documentation in relation to [the] certificates ... within one month of today's date".

The appellants submitted grounds of appeal in respect of each certificate on 14 February 2012. Thereafter, by letter dated 20 February 2012, the Reporter invited responses to the grounds of appeal "within 14 days of the date of this letter, namely 5 March" and requested "...at the same time or earlier, copies of the applications made to the planning authority for the certificates that are the subjects of the appeals". This request for copy applications was thus made after the expiry of the one month period within which the appellants' "grounds of appeal and supporting documentation" were to be lodged.

[7] As a result of the Reporter's request for copy documents, the second respondents contended that the appeals should be treated as withdrawn on the basis that the appellants had failed to comply with article 4(3). Following receipt of submissions on behalf of the appellants and the second respondents, on 16 March 2012 the Reporter issued a decision in the following terms:

"...The appellant furnished grounds of appeal within one month of 17 January 2012, but did not furnish the applications or the certificates.

... the reporter has concluded, notwithstanding the terms of the letters 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."

[8] The appellants contend that the Reporter reached a decision that was not reasonably open to her. Specifically, it is said that she erred in law in her interpretation of article 4(3). The dispute is as much concerned with the construction of the correspondence issued by the Reporter in the period leading up to the decision complained of and whether, or to what extent, it affected the appellants' obligation to "furnish" the specified documents in terms of article 4(3).

Submissions

Appellants

[9] The appellants submitted that the Reporter had acted beyond her powers under the 1963 Act by treating the appeals as withdrawn in terms of article 4(4). The relevant correspondence had to be construed objectively according to the perspective of the reasonable person in possession of all the background knowledge (Mannai Investment Co v Eagle Star Life Assurance Co [1997] AC 749, Lord Steyn at 767G-D, Lord Hoffman at 775C-E, Lord Clyde at 782C-E; Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896, Lord Hoffmann at 912H - 913E).

[10] The letter of 27 October 2011 fell to be construed as an extension of time under article 4(3), as it authorised the running of a one month period, not from the notice of appeal in accordance with the article, but from the later date of the letter. Thereafter, the e-mail of 14 November 2011 had the effect of suspending the time limit altogether. Notwithstanding that the e-mail referred only to grounds of appeal, the parties had actually understood that the time limit was suspended in respect of all documents required under article 4(3). The letter of 17 January 2012 re-imposed a time limit in respect only of grounds of appeal and documents in support of these grounds. The time limit in respect of copy certificates and applications remained suspended. Accordingly, there was no basis for the contention that the appellants had failed to comply with any time limit under article 4(3) or that the appeal ought to have been treated as withdrawn under article 4(4).

[11] A contrast was to be drawn between the letter of 27 October 2011, which made express reference to article 4 and the particular documents to be furnished thereunder, and the letter of 17 January 2012. Bearing in mind the sanction of deemed withdrawal, it had been necessary for the Reporter to make specific reference to any documents that required to be furnished. A request for "supporting documentation", was too vague. The first respondents had already received copy certificates and it was reasonable to infer from the terms of the letter of 17 January that the Reporter had also received copies of the applications. It was therefore unnecessary for the appellants to provide additional copies. The request for "supporting documentation" referred to the documents actually appended to, and relied upon in support of, the appellants' grounds of appeal. This was so notwithstanding that the expressions "supporting documents" and "supporting documentation", which appeared in the same letter under express reference to article 4, were to be construed as references to the documents required in terms of article 4(3). The Reporter's letter of 20 February 2012 had come too late to affect the proper construction of the letter of 17 January, but the request for copy applications to be provided by the second respondents supported the view that the appellants were not expected to have provided these documents. Additionally, the letter of 20 February demonstrated that, when the first respondents wished copy applications, they said so in clear and unambiguous terms.

[12] If the e-mail of 14 November did not amount to an indefinite suspension of the time within which to furnish copy certificates and applications, it was accepted that the time limit would have expired on 26 or 27 November and could not be extended (R v Secretary of State for the Environment ex parte Ward [1994] EGCS 164). If that were so, however, the certificates and relative applications were to be treated as "furnished" in terms of article 4(3) if the first respondents were nevertheless in possession of copies of the certificates and had access to copies of the applications. They had been in possession of the certificates, notwithstanding that these had not been furnished by the appellants, by virtue of the second respondents' letter of 3 November 2011. Both the certificates and applications had been available at some point on the planning authority's website, although they may not have been so available for the period referred to in article 4(3).

[13] It was necessary to take account of the legislative intention in construing "furnish" in article 4(3) (R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, Lord Bingham at para 8). The word took on a different meaning, depending on the context. It may or may not have required receipt (Hayman v Griffiths [1988] 1 QB 97, Mann J at 103). In the language of cats and dogs adopted by Lord Bingham (R (Quintavalle) v Secretary of State for Health (supra), the "new dog" was the internet, in the context of which the 1975 Order had to be interpreted. The purpose of the time limit and sanction imposed by articles 4(3) and 4(4) was to ensure that the first respondents were equipped with the necessary information to determine appeals without delay. In the circumstances, the necessary quality of furnishing had been achieved.

First respondents

[14] The first respondents argued that the reasonable construction of the correspondence was informed by the terms of the 1975 Order. The statutory process was straightforward and the letter of 27 October 2011 had set out clearly what had to be done. The request for "outstanding documentation" in that letter referred to the copy certificates and relative applications required in terms of article 4(3). The letter specifically requested that the documents were to be supplied by the appellants and it was irrelevant that the documents could have been made available from other sources. Article 4(3) imposed an obligation upon the appellants without the need for an express request or notification by the first respondents. It was not for the first respondents to seek out the necessary documentation and, potentially, to proceed upon incorrect material.

[15] The e-mail of 14 November 2011 paused the appeal process pending the outcome of objections to the competency of the appeals. Notwithstanding that the e-mail referred only to the grounds of appeal, it was accepted that the parties' common understanding at the time was that it covered all of the documents required by article 4(3). In the circumstances, it would not have been meaningful to suspend the requirement to lodge grounds of appeal and yet to require copy certificates and applications. However, if the court were to construe the e-mail as a reference to the grounds of appeal only, the appellants' arguments in respect of the letter of 17 January 2012 would fall away and the appeals would fail.

[16] Following determination of the competency issue, the letter of 17 January 2012 had set a new time limit in terms of article 4(3), which was entirely consistent with the request for documentation to be lodged within one month. The expression "supporting documentation", wherever it appeared in the letter, related to the documents to be furnished under article 4(3). It was unduly artificial to ascribe different meanings to the same expression, where it occurred at different points within the same letter. Section 26(3) of the 1963 Act required the Reporter to consider applications de novo. These documents were therefore to be regarded as essential material for an appeal. Upon the lodging of grounds of appeal with the Reporter, the appellants' covering e-mails made no reference to the material, which they now sought to characterise as separate "supporting documents". Article 4 did not require any such additional material to be produced. It went too far to infer from the letter of 17 January that the first respondents had sight or possession of the applications. Such an inference was undermined both by the fact that the wording founded upon was evident on the face of the certificates and by the subsequent request for copy applications on 20 February 2012. It was agreed that, as at 17 January, the Reporter did not have the copy applications and no copies were provided subsequently. Accordingly, the appellants were required to furnish the copy applications and certificates together with grounds of appeal within one month of 17 January. It was admitted that they had failed to do so. The provisions of article 4(3) were mandatory and, once the period allowed had elapsed, it could not be extended. Similarly, article 4(4) did not allow the Reporter to exercise any discretion as to the consequences of a failure to comply with the statutory timetable. Such a provision ensured finality and certainty by demanding that any challenges to certificates were made and pursued with due expedition (R v Secretary of State for the Environment ex parte Ward (supra)).

[17] Were the court minded to engage in a purposive construction of article 4(3), the appellants' alternative argument was, borrowing Lord Bingham's metaphor, to call a cat a dog (ibid at para 9). Even with the wonders of the internet, it was absurd to suggest that the requirement to "furnish" documents was satisfied where a party had said nothing at all about them (cf Hayman v Griffiths (supra)) and it was merely discovered after the event that the documents had been publicly accessible. The availability of the certificates and applications online depended entirely upon the policy of individual planning authorities. The first respondents had provided no specific guidance on the matter and they could neither confirm nor deny that the applications had been available online prior to the expiry of the time limit. Some active step on the part of the appellants had been required to bring the required documents to the attention of the Reporter, if the clear scheme set down by article 4 were not to be subverted or weakened (Hayman v Griffiths (supra)).

[18] Properly understood, article 4(4) imposed a sanction in the form of a "guillotine" with the purpose, beyond expediency and efficiency, to ensure finality and certainty (R v Secretary of State for the Environment ex parte Ward (supra), Harrison J at 17). If the statutory procedure were not followed, the certificates were to be automatically regarded as final in order to avoid undue anxiety to the parties (see also Compulsory Purchase and the Crichel Down Rules, ODPM Circular 06/2004).

Second respondents

[19] The second respondents adopted the submissions of the first respondents. It was submitted that, in construing the parties' correspondence, it was relevant that the purpose of the letter dated 27 October 2011 was to set out the statutory timetable and the consequences of failure to comply (Mannai Investment v Eagle Star (supra), Lord Steyn at 767 - 768). The letter of 17 January 2012 was intended to deal with all outstanding procedural points, which included production of the copy certificates and applications. The time limits for producing the relevant documents in terms of article 4(3) had been made clear in the Reporter's letters.

[20] Article 4 set out who was responsible for providing the relevant documents. The production of the documents by third parties could not relieve the appellants of their statutory obligations. In any event, the copy applications had not been provided to the Reporter by any other party. At the time of the 1975 Order telephone and postal services existed and documents could be examined at local authority offices. The internet did not alter anything of significance. In any event, it was not known whether the relevant applications had been available online at the time when the Reporter considered the appeal and it would not have been appropriate for the Reporter to search for this information. If the documents had been obtained privately by the Reporter, this might have given the impression of the Reporter assisting the appellant in circumstances where the first respondents were financially responsible for payment of the compensation.

[21] The first respondents had power to extend the period for lodging documents, but only where the request was made prior to the expiry of the statutory period (Vattenfall Wind Power Limited v Scottish Ministers (supra), LJC (Gill) at paras 9 - 12. The exercise of compulsory purchase powers inevitably led to uncertainty and anxiety on the part of affected owners and occupiers. Delays had to be kept to a minimum (Guillemin v France [1998] 25 EHRR 435; Article 6(1) of the European Convention on Human Rights). The relevant date for compensation in respect of the compulsory purchase of the land was 2003. If the amount of compensation were disputed, that still had to proceed to the Lands Tribunal for determination. Hence, strict procedures and the "guillotine" in article 4(4) were important provisions designed to minimise uncertainty and anxiety (R v Secretary of State for the Environment ex parte Ward (supra)).

Decision

[22] The terms of article 4(4) of the 1975 Order are clear and mandatory. If the appellants do not furnish certain specified documents, notably the grounds of appeal, copy applications and relative certificates specified in article 4(3), on time, the appeals are to be treated as withdrawn.

[23] The Reporter suspended the operation of time in terms of her e-mail of 14 November 2011, at least in respect of the furnishing of grounds of appeal. She was entitled to allow "such longer period..." within which the appellants were to lodge the documents and it was not disputed that it had been competent for her to act in this manner, whereby there would be no time limitation until the Reporter specified otherwise. The reasonable, well informed, recipient of this e-mail would construe it as postponing the time constraints only in respect of the lodging of grounds of appeal. That is what it says in plain terms. On one straightforward view, that would result in the inevitable failure of these appeals. However, given that the understanding of the parties was, in fact, that an indefinite extension had been granted in respect of all of the documents specified in article 4(3), the court will not decide the appeals on this basis. However, whether or not the suspension of time extended to all of the documents, the Reporter's subsequent letter dated 17 January 2012 imposed a comprehensive time limit in respect of all those documents, which came to an end as of one month from 17 January. At the latest, therefore, all the documents required to be "furnished" by that date.

[24] The Reporter's earlier letter of 27 October 2011 had referred specifically to three items, comprising the "outstanding documentation" in respect of each appeal; that is to say a copy of the relevant application, a copy of the relevant certificate and a statement of the grounds of appeal. The references to "supporting documents" and "supporting documentation" in the subsequent letter of 17 January are reasonably construed, applying the test of the reasonable recipient informed of the background circumstances (Mannai Investment Co v Eagle Star Life Assurance Co (supra)), as references to the same documents to be furnished in support of the appeal in terms of article 4(3); that is the copy certificates and relative applications. These expressions carry the same meaning as the reference to "outstanding documentation" in the earlier letter of 27 October. The letter of 17 January simply directs that those documents referred to previously must now be lodged within a specified time. These expressions are all references to the terms of article 4(3). In that regard, it is important to note that the letters were intended for receipt by lawyers and planners, who could be expected to have the provisions of article 4 at the forefront of their minds in construing correspondence from the Reporter.

[25] The terms of the letter of 17 January do not support a reasonable inference that the Reporter already had sight or possession of the relevant applications. The letter does not contain any information in respect of the applications that is not contained in the certificates themselves. The argument that the reasonable recipient of the letter would consider it unnecessary to furnish copy applications cannot be sustained. In any event, it is not disputed that the applications were not furnished to the first respondents by the appellants, as required by article 4(3). Article 4(4) must therefore apply. That is an end of the matter.

[26] Even if the Reporter's various references to supporting material were not necessarily to be construed as clearly being to the "outstanding documentation" requested previously, the court would have held that the expressions were reasonably to be construed in that way. If the e-mail of 14 November 2011 were understood as postponing the time limit for the lodging of all documents in terms of article 4(3), as was the contention of the parties, so too must the letter of 17 January be construed as imposing a further time limit in respect of those same documents.

[27] The court is not satisfied that the placing of material on a website, without something more, is sufficient to amount to the "furnishing" of that material to another for the purposes of statutory interpretation. There may be circumstances in which such information may be furnished by, say, providing a hyperlink to a website, where it has been made available, or uploading the information to a particular website at the request of the intended recipient. Where a party does nothing, however, there is no act which might be construed as "furnishing" the information to anyone. The first respondents cannot be expected to seek out the information required by article 4(3) on the basis that it may or may not be in the public domain. Aside from the uncertainty that would be created as a result, in relation to whether the appeals were being insisted upon, it would run entirely contrary to the logical and clearly expressed intention of Parliament that it is the appellants who are responsible for the furnishing of the documents under article 4(3) in order to proceed with their appeals. For all of these reasons, the appeals are refused.