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Session Cases/Sessions (1906-Present)/1972/HAMILTON v. SECRETARY OF STATE FOR SCOTLAND -

1972 SC 72

1972 SC 72

HAMILTON v. SECRETARY OF STATE FOR SCOTLAND

1972 SC 72

OUTER HOUSE.

1972-02-01

Jurisdiction - Exclusion - Compulsory purchase order confirmed by Secretary of State after public inquiry -
Statutory provision for appeal to Court of Session within limited time - Alleged breaches of rules of natural
justice and statutory rules of procedure - Common law action for reduction of order raised outwith time - limit
- Competency - Compulsory Powers - Acquisition of Land (Authorisation Procedure) (Scotland) Act, 1947 (10
and 11 Geo. VI, cap. 42), First Sched., paras. 15 and 16 - Tribunals and Inquiries Act, 1958 (6 and 7 Eliz. II,
cap. 66), sec. 11 (2) and (3). - Compulsory Powers - Compulsory purchase order - Appeal on ground that
authorisation of purchase 'not empowered to be granted' under statute - Scope of ground of appeal - Ultra
vires - Acquisition of Land (Authorisation Procedure) (Scotland) Act, 1947 (10 and 11 Geo. VI, cap. 42), First
Sched., para. 15. - Compulsory Powers - Compulsory purchase order by local authority - Procedure -
Preparation of report following public inquiry - Amendment by reporter of Part I of report - Failure to consult
objectors - Administrative Law - Compulsory Purchase by Local Authorities (Inquiries Procedure) (Scotland)
Rules, 1964 (S.I. 1964, No. 180), rule 9 (1). - Compulsory Powers - Compulsory purchase order -
Confirmation by Secretary of State - Administrative or quasi - judicial function - Decision of Secretary of State
at variance with recommendation of reporter - Receipt by Secretary of State of new evidence - Failure to
notify objectors - Administrative Law - Compulsory Purchase by Local Authorities (Inquiries Procedure)
(Scotland) Rules, 1964 (S.I. 1964, No. 180), rule 9 (2)..

Para. 15 of the First Sched. to the Acquisition of Land (Authorisation Procedure) (Scotland) Act, 1947, gives
to a person aggrieved by the confirmation of a compulsory purchase order a right to appeal to the Court of
Session within six weeks from the date of publication of the notice of the confirmation, on the ground, inter
alia, 'that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under
this Act.' Para. 16 provides:-'Subject to the provisions of the last foregoing paragraph a compulsory purchase
order ... shall not ... be questioned in any legal proceedings whatsoever ...'
The Tribunals and Inquiries Act, 1958, enacts by sec. 11:-'(2) As respects Scotland, any provision in an Act
passed before the commencement of this Act that any order or determination shall not be called into question
in any court, or any provision in such an Act which by similar words excludes any jurisdiction which the Court
of Session would otherwise have to entertain an application for reduction or suspension of any order or
determination, or otherwise to consider the validity of any order or determination, shall not have effect so as
to prevent the exercise of any such jurisdiction. (3) Nothing in this section shall ... apply ... where an Act
makes special provision for application to ... the Court of Session within a time limited by the Act.'
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A county council made a compulsory purchase order, to which objections were lodged. The Secretary of
State having, after a public inquiry, confirmed the order, an objector raised an action more than six weeks
thereafter for reduction of the order on the ground that it was illegal and ultra vires and had been confirmed
upon the basis of proceedings which were contrary to the requirements of natural justice.
Lord Kissen (Ordinary) held that sec. 11 (3) of the 1958 Act rendered sec. 11 (2) inapplicable to the case,
since para. 15 of the First Sched. to the 1947 Act made special provision for application to the Court of
Session within a limited time, and consequently that para. 16 remained effectual to exclude the jurisdiction of
the Court; and dismissed the action as incompetent.
Opinion that an application under para. 15 on the ground that the authorisation was 'not empowered to be
granted' was limited to the ground that what had been authorised by the order had gone beyond what had
been authorised by the Act under which the order had been made, and could not be based on defects in
procedure.
Smith v. East Elloe Rural District Council, 1956 A.C. 736, applied.Anisminic v. Foreign Compensation
Commission, 1969 2 A.C. 147, distinguished.
The Compulsory Purchase by Local Authorities (Inquiries Procedure) (Scotland) Rules, 1964, by rule 9 (1)
require the reporter after the close of an inquiry to prepare the first part of his report, to provide a copy to
every party, if required, and to consider any comments received by him from such party; and empower him,
after consulting all the other parties, to amend the first part of his report.
A county council made a compulsory purchase order, to which objections were lodged. A public inquiry
having been held, the reporter provided a copy of the first part of his report to the parties and, having
received comments from one of them, amended the first part of his report on a material point without
consulting the others.
Opinion by Lord Kissen (Ordinary) that he had acted in breach of rule 9 (1) and of the requirements of natural
justice.
The Compulsory Purchase by Local Authorities (Inquiries Procedure) (Scotland) Rules, 1964, provide by rule
9 (2) that, where the Minister after the close of an inquiry receives any new evidence and by reason thereof
is disposed to disagree with a recommendation made by the reporter, he shall not come to a decision at
variance with such recommendation without first notifying, inter alios, any objector who appeared at the
inquiry of his disagreement and giving him an opportunity to make representations or to ask for the inquiry to
be reopened.
A county council made a compulsory purchase order, to which objections were lodged. A public inquiry
having been held, the reporter in his report made a recommendation subject to two qualifications. The
Secretary of State, having obtained further information from the county council, differed from the reporter's
findings of fact and gave effect to the recommendation without the qualifications. He did not notify the
objectors or give any opportunity for further procedure.
Opinion by Lord Kissen (Ordinary) (1) that, in confirming a compulsory purchase order, the Secretary of State
exercises a quasi-judicial, not an administrative, function; and (2) that, in the present case, he had acted in
breach of rule 9 (2) and of the requirements of natural justice.
(Sequel to 1970 S.C. 248.)
Mrs Constance Beryl Crum Ewing or Hamilton, proprietor of the estate of Lowood in the county of Roxburgh,
and Ian Bogle Monteith Hamilton, her husband, raised an action against (first) the Secretary of State for
Scotland and (second) the County Council of the County of Roxburgh, in which they concluded (1) for
production and reduction of a compulsory purchase order of the second defenders which had been
'purportedly confirmed' by the first defender, and (2) for interdict of the second defenders from entering upon
or taking possession of those lands of the estate of Lowood described in the schedule to the order. The facts,
pleadings and procedure, so far as material, are fully set forth in the opinion of the Lord Ordinary (Kissen).
The first defender pleaded, inter alia:-'(1) The remedy sought by the pursuers being incompetent, the action
should be dismissed. (2) The pursuers' averments being irrelevant et separatim lacking in specification, the
action should be dismissed.'
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The second defenders' first and second pleas in law were in substantially identical terms.
On 1st February 1972, after a Procedure Roll discussion, the Lord Ordinary (Kissen) sustained the first plea
in law for each of the defenders and dismissed the action.

His Lordship referred to a matter with which this report is not concerned, and continued -

The first conclusion is:-'For production and reduction of the County of Roxburgh Development Plan
Amendment No. 14 (Darnick) Compulsory Purchase Order, 1968, being an order of the County Council of the
County of Roxburgh purportedly confirmed by the Secretary of State for Scotland on 14th and coming into
effect on 26th both days of August 1969.' Part of the lands of the said estate is included in the schedule to
the said order. It is specifically averred by the pursuers that this action is concerned only with the said order
and not with the amendment no. 14 or the confirmation thereof. The said order is not described anywhere in
the closed record as a 'purported' order. His Lordship then referred to the second conclusion, with which this
report is not concerned, and continued -

The legal basis of the action for reduction is stated in the pursuers' second and third pleas in law, which are
in these terms: '(2) The said compulsory purchase order as confirmed by the first defender being illegal and
ultra vires as condescended upon, decree of reduction should be pronounced as concluded for. (3) The said
compulsory purchase order as confirmed by the first defender having been so confirmed upon the basis of
proceedings which were contrary to the requirements of natural justice, as condescended upon, decree of
reduction should be pronounced as concluded for.' The averments in support of these pleas in law relate to
certain actings by the reporter who was appointed by the first defender to hold a public inquiry, and by the
first defender. The inquiry was into objections and representations (a) in connection with said amendment no.
14 and (b) in connection with the said order. The pursuers were among the objectors represented at the
inquiry.

The inquiry was duly held by the reporter under the Town and Country Planning Acts, the Acquisition of Land
(Authorisation Procedure) (Scotland) Act, 1947 (10 and 11 Geo. VI, cap. 42), and the Compulsory Purchase
by Local Authorities (Inquiries Procedure) (Scotland) Rules, 1964 (S.I. 1964, No. 180). The said Rules
applied to the inquiry in so far as the inquiry was concerned with the authorisation of the order (see rule 2).

After the close of the inquiry the reporter in accordance with rule 9 (1) (a) of the Rules, prepared the first part
of his report. This comprised a summary of the evidence which was led at the inquiry together with his
findings of fact. Thereafter he provided a copy of the first part of his report to the parties at the inquiry,
including the pursuers and the second defenders. In due course he received certain comments from the
second defenders, which were not communicated to the pursuers. The reporter, before submitting his report
to the first defender, made certain amendments to the findings of fact in the first part of his said report.

The essence of the case, so far as based on the reporter's actings, is that he was in breach of rule 9 (1) (b)
(iii) of the said Rules of 1964, which admittedly applied to the inquiry conducted by the reporter, in so far as
that inquiry was concerned with the order. That rule is in these terms:-'After the close of the inquiry the
reporter may, after consulting all the other parties to the inquiry, amend the first part of his report, so however
that he shall not, except with the consent of all parties, introduce into his report any matter that had not been
raised at the inquiry.' The pursuers had been parties to the inquiry. The essence of the complaint is that the
reporter, after preparing the first part of his report and providing copies to all parties in terms of the provisions
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of rule 9 (1) (a), made substantial amendments to it without 'consulting' the pursuers and as a result of
comments made by the second defenders which were not communicated to the pursuers. The said
amendments are stated in articles 6 and 9 of the condescendence. The reporter had originally stated: 'In the
result, therefore, the people of Galashiels, and particularly those whose land will have to be acquired, will
almost certainly be bound by a scheme to which they have never had a chance of objecting. The alternative
possibility of such objection being upheld following an inquiry on the Selkirk amendment would throw the
whole scheme into the melting pot.' The altered finding was in these terms: 'It may be, however, that the line
of the road on the Galashiels side of the bridge will not require very drastic amendment and Mr Reid agreed
in his closing speech that action to acquire the necessary land for the realigned road could probably be taken
under the Roads Acts without requiring an amendment of the Selkirkshire Development Plan (pp. 1831-2).
This could still result, however, in objections and an inquiry, and if such objections were upheld, the scheme
could be seriously affected.' The pursuers aver: 'The reporter made the said amendments without consulting
the pursuers. In these circumstances it is believed and averred that the reporter failed to comply with the said
requirement of the said rule; that his report was illegal and ultra vires; that, by submitting the said report
without consulting the pursuers, the reporter acted in a manner contrary to the requirements of the said
Regulations and of natural justice; and that the first defender in purporting to confirm the said order as
hereinafter condescended upon did not proceed upon a legally valid report; and that the purported
confirmation was contrary to natural justice and ultra vires.'

The essence of the case which is based on the first defender's actings is that he was in breach of rule 9 (2)
of the said Rules. That rule is in these terms: '(2) Where the Minister-(a) differs from the reporter on a finding
of fact, or (b) after the close of the inquiry receives any new evidence (including expert opinion on a matter of
fact) or takes into consideration any new issue of fact (not being a matter of Government policy) which was
not raised at the inquiry, and by reason thereof is disposed to disagree with a recommendation made by the
reporter, he shall not come to a decision which is at variance with any such recommendation without first
notifying the acquiring authority and any statutory objector who appeared at the inquiry of his disagreement
and the reasons for it and affording them an opportunity of making representations in writing within 21 days
or (if the Minister has received new evidence or taken into consideration any new issue of fact not being a
matter of Government policy) of asking within 21 days for the re-opening of the inquiry.' The complaint is
twofold. It is averred by the pursuers, firstly, that the first defender differed from the reporter on certain
findings of fact which are detailed in articles 6 and 8 of the condescendence. These, very briefly, related to
the extension of a proposed link road into Selkirkshire, with the delays and difficulties thereby involved, and
the acquisition of a small part of a river bed. It is further averred by the pursuers, as a second line of
complaint, that 'after the close of the inquiry the first defender's officials communicated by telephone with the
County Clerk of the County of Selkirk and obtained new evidence as to objections anticipated by Selkirk
County Council in connection with the said proposed acquisition of lands by them, and regarding the difficulty
of achieving the said acquisition.' The complaint is that the first defender 'did not notify the pursuers of his
disagreement or the reasons for it, and did not afford them an opportunity of making representations or
asking for the re-opening of the inquiry. In these circumstances it is believed and averred that the first
defender's decision was illegal and ultra vires, and that it was also contrary to the requirements of the said
Regulations and of natural justice.'

The pursuers make various averments about the prejudice caused to them by these actings of the reporter
and the first defender, but I do not think that I require to elaborate them.

The defenders admit most of the factual averments made by the pursuers but deny the legal results or
effects on which the pursuers found. As counsel for all parties were agreed that the questions at issue in this
case could be decided on the pleadings, and that a proof was unnecessary, I do not elaborate the defenders'
averments.

The debate was concerned with the preliminary pleas in law of the parties. The pursuers' first plea in law is in
these terms: '(1) The defenders' averments being irrelevant, decree should be pronounced as concluded for
de plano.' The first defender's preliminary pleas in law are in these terms: '(1) The remedy sought by the
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pursuers being incompetent, the action should be dismissed. (2) The pursuers' averments being irrelevant et
separatim lacking in specification, the action should be dismissed.' The second defenders' preliminary pleas
in law are in these terms: '(1) The action, being incompetent, should be dismissed. (2) The pursuers'
averments being irrelevant et separatim lacking in specification, the action should be dismissed. (3) The
pursuers' averments in condescendence 13 alleging oppression by these defenders of the pursuers, being
irrelevant et separatim lacking in specification, should not be admitted to probation.' I say no more about the
second defenders' third plea in law, which related to averments in support of interim interdict and had no
bearing on the questions which were discussed at the debate. Both defenders made joint submissions in
support of their first and second pleas in law.

Before I state the submissions which were made at the debate on behalf of the parties in support of these
pleas in law, and my opinions on them, I must refer to the unsuccessful application by the pursuers to the
Court of Session against the order. Both defenders were parties to the application. The facts relied on by the
pursuers in that application appear to be identical with the facts relied on by them in this action, and some
questions which were considered in that application have some bearing on some questions which were
discussed in the debate before me. That case is reported in 1970 S.C. 248.

That application was based on paragraph 15 of the First Schedule of the Acquisition of Land (Authorisation
Procedure) (Scotland) Act, 1947. That paragraph provides, inter alia: '(1) 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 one of this Act, or if any
person aggrieved by a compulsory purchase order ... 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 ..., he may, within six weeks from the date on which notice of the confirmation or making of the
order ... is first published in accordance with the provisions of this Schedule in that behalf, make an
application to the Court of Session, and on any such application the Court ... (b) if satisfied that the
authorisation granted by the compulsory purchase order is not empowered to be granted as aforesaid, or that
the interests of the applicant have been substantially prejudiced by any requirement of this Schedule or of
any regulation made thereunder not having been complied with, may quash the compulsory purchase order
or any provision contained therein ... either generally or in so far as it affects any property of the applicant.'
The application was based on the second ground in paragraph 15. The pursuers relied on the breaches of
the Rules of 1964 which I have previously quoted, namely breaches of rules 9 (1) (b) (iii) and 9 (2). The
application was dismissed because the Rules of 1964 were made under the Tribunals and Inquiries Act, 1958
(6 and 7 Eliz. II, cap. 66), as amended by the Town and Country Planning (Scotland) Act, 1959 (7 and 8 Eliz.
II, cap. 70), section 33. Paragraph 15 of the Act of 1947 refers only to non-compliance with any 'requirement
of this Act or of any regulation made thereunder.' There was no case of failure to comply with any
requirement of the Act of 1947 or of any regulations made thereunder.

I consider, firstly, the submissions which were made by counsel for the parties in regard to competency. It will
be convenient if I consider them in three chapters. These chapters are: (1) the interpretation of section 11 (2)
and (3) of the Tribunals and Inquiries Act, 1958, and the effect of these subsections on the applicability of
paragraph 16 of the First Schedule of the Act of 1947 to the present case; (2) the meaning and effect of
paragraph 16; and (3) the interpretation of paragraph 15, which I have quoted previously.

(1) Section 11 of the Act of 1958, which has the side-note 'Extension of supervisory powers of superior
courts,' provides, inter alia: '(2) As respects Scotland, any provision in an Act passed before the
commencement of this Act that any order or determination shall not be called into question in any court, or
any provision in such an Act which by similar words excludes any jurisdiction which the Court of Session
would otherwise have to entertain an application for reduction or suspension of any order or determination, or
otherwise to consider the validity of any order or determination, shall not have effect so as to prevent the
exercise of any such jurisdiction.'
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It was agreed that, for the purposes of this case, subsection (3) could be read as follows: 'Nothing in this
section shall apply where an Act makes special provision for application to the Court of Session within a time
limited by the Act.' I observe, at this stage, that in the statutory application which I have previously mentioned
(1970 S.C. 248) Lord Migdale (at p. 259) and Lord Cameron (at pp. 264-5) both referred to subsection (2) of
section 11 and its effects but made no mention of subsection (3). I referred to this in my opinion dated 12th
November 1970 relating to interim interdict.

Paragraph 16 of the First Schedule of the Act of 1947 is in these terms: '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.'

The submission by defenders' counsel on the effect of these subsections of section 11 of the Act of 1958 was
that, because of subsection (3), subsection (2) did not take effect and paragraph 16 remained effective.
Pursuers' counsel argued, on the other hand that in a case like the present, which was not based on the
statutory right of appeal given by paragraph 15 but was based on general principles for which statutory
provision was not made, subsection (3) did not apply. The result was, it was said, that because of subsection
(2), paragraph 16 was no longer effective. The purpose of sub- section(3), it was maintained, was to
preserve paragraph 16 for such applications as have to be made within a statutory time-limit but to make it
have no effect in all other cases, including actions at common law for reduction of 'purported' statutory
actings.

As I have said in my previous opinion, I think that this interpretation by the pursuers would require that
additional words be read into subsection (3). I do not think that there is any need to do so in order to interpret
that subsections and to appreciate the interaction of paragraphs 15 and 16 with subsections (2) and (3) of
section 11 of the Act of 1958. Ignoring for the moment the Act of 1958, it is clear that paragraphs 15 and 16
are mutually exclusive, in that they can never apply to the same circumstances. Ignoring subsection (3),
subsection (2) would make paragraph 16 ineffectual. Subsection (3), however, limits the effect of subsection
(2). The effect of the subsections of the Act of 1958 is not a repeal of paragraph 16 but a limitation of its
applicability. The result seems to me to be clear in this case when the statutory provision given by paragraph
15 to call into question compulsory purchase orders is considered. Subsection (3) means that nothing in
subsection (2) is to apply where there is, in the Act which is under consideration in subsection (2), a provision
that a compulsory purchase order shall not be called into question if that Act makes 'special provision' for an
application to the Court of Session within a time limited in that Act for calling the order into question. The Act
under consideration in the present case is the Act of 1947 and the statutory provision regarding compulsory
purchase orders being called into question is in paragraph 15. The result in the present case is, I think, that
paragraph 16 remains effectual. These statutory provisions could also be read in a wider sense as meaning
that subsection (2) is not to apply to any Act which makes provision for application to the Court of Session
within a time-limit, but it is unnecessary for me to decide this. That interpretation also favours the defenders'
submission.

As I have said, I had difficulty in trying to interpret these statutory provisions in the way suggested by
pursuers' counsel without adding words to subsection (3). I could not accept their suggestion that their
interpretation was to be preferred because it was in line with the 'liberalising' object of the Act of 1958, which
was to give to the subjects an access to the Courts which they did not previously have. The fact is that there
was access to the Courts, by persons who thought that they were aggrieved by compulsory purchase orders,
before the Act of 1958, although that right of access was limited in regard to grounds and time for appealing.
If this aspect is to be considered, it seems to me to be strange that the effect of 'liberalising' would be to allow
the time-limited right of appeal to remain limited in the only cases where appeal was previously allowed and
where ultra vires in the narrow sense, to which I refer later, is concerned, and to allow unlimited rights on
other grounds which were previously considered less important. On this approach, if policy is to be
considered as an aid to interpretation, it seems to me that the policy was not to extend the jurisdiction of the
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Courts, if the Courts did have jurisdiction, albeit limited. I could not, furthermore, accept the suggestion by
pursuers' counsel that the purpose of subsection (3) was to prevent persons who would be barred by the
time-limit in paragraph 15 from evading that time-limit by relying on the ineffectiveness of paragraph 16,
created by subsection (2), in order to use a common law remedy in place of the statutory time-limit provision,
after the expiry of the time-limit. I was also referred by pursuers' counsel to paragraphs 2 and 3 of Schedule
4 and sections 173 and 180 of the Housing Act, 1957 (5 and 6 Eliz. II, cap. 56), as giving support to their
interpretation. I could not find any support there.

Quantum valeat, I add that, in the case of Cartwright v. Ministry of Housing and Local Government, (1967) 65
L.G.R. 384, decided in the Chancery Division by Plowman J., there is no suggestion that paragraph 16 of the
First Schedule of the Acquisition of Land (Authorisation Procedure) Act, 1946 (9 and 10 Geo. VI, cap. 49),
which is identical to paragraph 16 in the Scottish Act, was affected by the Tribunals and Inquiries Act, 1958.
The circumstances of that case bore some similarities to the circumstances of the present case and the
decision was based on Smith v. East Elloe R.D.C., 1956 A.C. 736, to which I refer later.

My conclusion on this aspect of the case is that paragraph 16 remains effective in this case.

(2) I now consider the submissions made on behalf of the parties on the meaning and effect of paragraph 16
in this case.

The defenders' counsel relied strongly on the case of Smith (supra). That case is very much in point. There
was consideration by the House of Lords in that case of paragraphs 15 and 16 of the First Schedule of the
Acquisition of Land (Authorisation Procedure) Act, 1946, the English Act corresponding to the Act of 1947.
These two paragraphs in the English Act are identical with paragraphs 15 and 16 in the Scottish Act, which
are of importance in this case. The appellant in that case, the owner of lands which were the subject of a
compulsory purchase order, brought an action outside the statutory time-limit, claiming, inter alia, a
declaration that the compulsory purchase order had been made and confirmed wrongously and in bad faith.
It was held by a majority, inter alia, that the action for the declaration could not proceed because of the terms
of paragraph 16 of the Act of 1946 and its effect on the jurisdiction of the Courts. All were strong on the
effectiveness of paragraph 16 in ousting the jurisdiction of the Courts, the two dissenters making an
exception only in cases of fraud or mala fides. Lord Reid, who dissented, said (at p. 764): 'In my judgment,
paragraph 16 is clearly intended to exclude, and does exclude entirely, all cases of misuse of power in bona
fide.' He then goes on to say that cases where deliberate dishonesty, corruption or malice is involved are not
excluded by paragraph 16. Lord Somervell, who also dissented, was also of the view that mala fides was in a
special position despite the wording of paragraph 16 (see pp. 772-3). This case was followed by Plowman J.
in Cartwright (supra), where he referred to the observations of Viscount Simonds in Smith (at p. 760) and
said (at p. 391) that a challenge on the ground of an infringement of natural justice is no different in this
respect from a challenge on the ground of bad faith. Lord Cameron, in the earlier appeal by the pursuers in
this case, took a similar view of the effect of paragraph 16 (see 1970 S.C. 248, at pp. 264-5).

The answer by pursuers' counsel to Smith was the recent case of Anisminic v. Foreign Compensation
Commission, 1969 2 A.C. 147. This case concerned the effect of section 4 (4) of the Foreign Compensation
Act, 1950 (14 Geo. VI, cap. 12), which provided:-'The determination by the Commission of any application
made to them under this Act shall not be called in question in any court of law.' It was held, in the House of
Lords, that the Court was not precluded by section 4 (4) from inquiring whether an order of the Commission
was a nullity because, to quote the head note, '... the word "determination" in section 4 (4) of the Act of 1950
should not be construed as including everything which purported to be a determination but was not in fact a
determination because the Commission had misconstrued the provision of the Order defining their
jurisdiction.' It was maintained by pursuers' counsel that, on the authority of this case, provisions such as
paragraph 16 did not preclude an action in the Courts where the basis of the action was that a compulsory
purchase order was a nullity. The case of Smith, where the nullity aspect was not considered, except
incidentally by Lord Radcliffe at p. 769, was therefore, it was argued, of no authority in the present case,
where the compulsory purchase order which was under attack was said to be a nullity. Reliance was placed
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on the observations regarding Smith which were made in Anisminic by Lord Reid (at pp. 170-1), Lord Morris
(at p. 181) and Lord Pearce (at pp. 200-1). There were suggestions in Anisminic that the case of Smith might
require to be reconsidered.

I cannot accept these submissions by pursuers' counsel. Although Smith was a case which was concerned
with the meaning and effect of paragraphs 15 and 16 in an English Act, these paragraphs are identical with
paragraphs 15 and 16 which are under consideration in this case. The case of Smith has not in fact been
reconsidered by the House of Lords. Lord Reid in Anisminic neither withdrew nor altered his observations in
Smith on the effect of paragraph 16 which I have previously quoted. Lord Morris in referring to Smith, and
Lord Pearce in referring to the dissenting opinions of Lord Reid and Lord Somervell, were doing so in
connection with the question of the effect of mala fides. That aspect does not arise in the present case.

There is, in my opinion, a further reason why the ratio of Anisminic is not applicable in the circumstances of
the present case. There was nothing in the statutory provisions which were considered in Anisminic which
corresponded, in any way, with paragraph 15 in this case. Whatever view may be taken of the scope of the
first branch of that paragraph, which I consider later, it was common ground that it did relate to a basis which
amounted to a nullity. It was agreed that a statutory right of appeal, with a time-limit, was given by paragraph
15 of the Act of 1947. This right enabled a person who was aggrieved by a compulsory purchase order to
apply to the Court of Session to quash a compulsory purchase order, where the ground in the first branch of
paragraph 15, relating to a nullity, applied. The question in Anisminic was whether the Court was precluded
from deciding whether a determination of the Commission was a nullity in circumstances where the statute in
question in that case made no provision of any kind for applications to the Courts for consideration of such
nullities. In the statutory provisions which apply in this case, there is a provision for quashing at least some
kinds of null orders. I cannot see how it can be said on the basis of Anisminic that, as pursuers' counsel
maintained, one kind of nullity can be remedied by the application of paragraph 15 but all other kinds can be
remedied by ordinary legal proceedings in the Courts. If that was the intention of the statutory provisions
which are under consideration in this case, it would have been easy to say so (see Anisminic, per Lord Reid
at p. 170).

There was a submission by defenders' counsel which did not appear to me to advance materially their
arguments on competency, and indeed on relevancy, where it was also put forward. The basis of this
submission was that the pursuers' case, according to their pleadings, was not based on a 'purported'
compulsory purchase order which was a nullity, but on a 'purported' confirming. It was said that, on any view
of Anisminic, this fact meant that the principles which were applied in Anisminic were not applicable in the
present case, because there was no challenge of the compulsory purchase order as such. The answer to this
by pursuers' senior counsel, in the last speech, was a reference to the observations of Ashworth J. in London
and Westcliff Properties Ltd. v. Minister of Housing and Local Government, 1961 1 W.L.R. 519 (at p. 526),
and a suggestion that there was no distinction in matters of this kind between a 'purported compulsory
purchase order' and a 'compulsory purchase order purportedly confirmed.' This submission had been put
forward for the first time in the speech by he second defenders' senior counsel in answering the arguments
based on Anisminic. I did not have the advantage of hearing his views on the observations of Ashworth J. in
London and Westcliff Properties. I do not think, however, as I have said, that this rather technical point
assists the defenders to any material extent. They had what I think were much stronger arguments.

My view is that the opinions in Smith regarding the meaning and effect of the identical statutory provisions
considered in that case apply in the present case, as they did in Cartwright (supra). Apart from that, I think
that the meaning and effect of the wide words of paragraph 16 are clear and that the Court of Session can
competently intervene only under paragraph 15. The result is that the first plea in law for each of the
defenders falls to be sustained and the action dismissed because it is incompetent.

Before I complete this chapter, I should mention that I was referred to a number of other cases. In these
cases the rights of the Courts to interfere with the decisions of statutory bodies, despite finality clauses which
appeared to exclude interference by the Courts, were discussed and considered. I did not find these cases of
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any assistance in the circumstances of this case because of the particular statutory provisions which apply
here. These cases are Ross v. Findlater, (1826) 4 S. 514, per Lord Pitmilly at p. 518; Campbell v. Brown,
(1829) 3 W. & S. 441; Caledonian Railway Co. v. Glasgow Corporation, 7 F. 1020; Moss' Empires Ltd. v.
Assessor for Glasgow, 1917 S.C. (H.L.) 1. A number of other cases were quoted to me to show the
circumstances in which Courts had considered that the findings or proceedings of statutory bodies had
amounted to nullities. Such circumstances were a breach of the rules of natural justice or a departure from
statutory procedural rules which were a condition precedent to the exercise of statutory powers. These cases
were Andrews v. Mitchell, 1905 A.C. 78; Rex v. Shoreditch Assessment Committee, 1910 2 K.B. 859; Rayner
v. Corporation of Stepney, 1911 2 Ch. 312; M'Ewen's Trustees v. Church of Scotland General Trustees, 1940
S.L.T. 357; M'Donald v. Lanarkshire Fire Brigade Joint Committee, 1959 S.C. 141; and Ridge v. Baldwin,
1964 A.C. 40. I did not obtain any assistance from these cases in regard to the interpretation of paragraph
16, although some of them had some bearing on questions considered in the next chapter. I was also
referred by pursuers' counsel to Professor Mitchell's Constitutional Law, (2nd ed.) p. 249, where it is stated
that Smith (supra) may not be followed in Scotland, because the Courts in Scotland always had a wider
general power to control administration than the English Courts. Whether that latter statement is correct or
not, it seems to me that the ratio in Smith does apply in this particular case for the reasons which I have
given.

(3) It follows, from what I have said, that the interpretation of paragraph 15 is not now of importance. That
interpretation was, however, the basis of another line of attack on competency made by the defenders. I
therefore consider it, but rather briefly.

There was a difference of opinion about the scope of the first branch of paragraph 15. Pursuers' counsel
maintained that the first branch was to be construed narrowly and in the words used by Lord Reid in Smith,
when he said (at p. 761); '... ultra vires in the sense that what was authorized by the order went beyond what
was authorized by the Act under which it was made.' Lord Reid was there referring to the identical paragraph
15 in the corresponding English Act. Lord Reid later in that case, referring to the first branch of paragraph 15,
said (at p. 763): '... this part of the paragraph only refers to cases of ultra vires in the normal sense in which I
have used it.' Lord Morton (at p. 754) and Lord Somervell (at p. 772) appear to be of the same view. In Peter
Holmes & Son v. Secretary of State for Scotland, 1965 S.C. 1, Lord Wheatley (at p. 13) appears to take the
same view of the first branch of paragraph 15.

Defenders' counsel maintained that the first branch was to be construed widely and as including any ground
'which would justify the court in setting aside a purported exercise of statutory power,' to quote the words of
Viscount Simonds, who differed from the majority on this aspect, in Smith (at p. 752). Such a ground would
include, inter alia, 'procedural ultra vires,' that is, informality of procedure where some essential statutory step
in procedure, which was a condition precedent to the exercise of statutory powers, had been omitted. It
would also include actings which were contrary to the requirements of natural justice.

I have reached the conclusion, although not without some difficulty, that the narrower interpretation is to be
preferred and that an appeal under the first branch of paragraph 15 is confined to a question of vires in the
narrow sense. It applies where it can be said that the Minister has no power, and not where there has been
some informality of procedure. It is not easy to see the application of the second branch if the first branch is
given the wide meaning suggested, particularly as the words 'substantially prejudiced' are used in sub-
paragraph (b) of paragraph 15 (i) as a prerequisite to the Court quashing an order.

I add, at this stage, that pursuers' counsel informed me that the phrase 'ultra vires' in the pleadings was used
in the wide sense as meaning breaches of essential or material procedural requirements which had been laid
down by the relevant statutory provisions.

The submission put forward by the defenders on this aspect was that a wide interpretation of the first branch
of paragraph 15 meant that the pursuers were now raising, at common law, an action which was based on
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grounds which could have been used for the statutory application under the first branch of paragraph 15. The
essence of the submission was that the bases of the pursuers' case were procedural ultra, vires and, if
distinguishable (which was not conceded), breaches of the requirements of natural justice. It was said that
they were seeking a remedy for something which they averred was not 'empowered' to be granted under the
Act of 1947. In this connection I was referred to Anisminic (supra), Lord Wilberforce at p. 207; Ridge (supra),
Lord Devlin at pp. 138-9; and Errington v. Minister of Health, 1935 1 K. B. 249. These references did not
assist me in the interpretation of paragraph 15, the wording of which was considered in Smith (supra) and
Holmes (supra).

It was not disputed by pursuers' counsel that if the grounds now put forward could have been put forward in
an application under the first part of paragraph 15, this action would be incompetent.

As it is my view that the first branch of paragraph 15 has to be given a narrow meaning, it follows that the
defenders' attack on competency on this ground fails.

I turn now to the submissions which were made in regard to the parties' pleas in law on relevancy. As it is my
view that the action is incompetent, it is unnecessary for me to consider this aspect in order to reach a
decision on the future of this case. I propose, however, to deal briefly with the submissions which were made.

As I said earlier, the attack by the pursuers is against certain actings by the reporter who conducted the
inquiry and by the first defender. It was agreed by counsel for all the parties that, if the action was competent,
and if a relevant case had been made against either the reporter or the first defender, the pursuers would be
entitled to succeed. I propose to consider, firstly, the case made against the actings of the first defender. I
add that pursuers' counsel stated that their second plea in law, which I have quoted previously, refers to a
breach of the Rules of 1964, 'ultra vires' being used in a wide sense there, and that their third plea in law, as
stated, refers to a breach of the requirements of natural justice.

I have previously narrated the essence of the pursuers' attack on the actings of the first defender.

A major question at issue between the parties was whether the first defender was exercising quasi-judicial
functions or administrative functions when confirming the said compulsory purchase order. Pursuers' counsel
maintained that he was acting quasi-judicially at the material time, whereas the submission of counsel for the
defenders was that he was acting administratively. This distinction is of importance in regard to the relevancy
of the averments of breach of the requirements of natural justice. I was referred to a number of cases where
this question was considered. I state the cases mentioned: Board of Education v. Rice, 1911 A.C. 179; Ridge
(supra); Errington (supra); Frost v. Minister of Health, 1935 1 K.B. 286; Darlassis v. Minister of Education,
(1954) 52 L.G.R. 304; and Franklin v. Minister of Town and, Country Planning, 1948 A.C. 87. I was also
referred to the opinion of Lord Wheatley in Palmer v. Inverness Hospitals Board of Management, 1963 S.C.
311, at pp. 318-9.

My opinion is that the first defender was acting in a quasi-judicial capacity in confirming the compulsory
purchase order. He was determining a contest between two sides, namely, the pursuers, the owners of the
property, and the second defenders, who wished to acquire it (Errington, per Maugham L.J. at p. 27). To put
the matter in another way, he had to make a decision where property rights were involved (Ridge, per Lord
Reid, at p. 68, Lord Morris at p. 124). His administrative function ended, in my opinion, when objections to
the compulsory purchase order were made (Frost, per Swift J. at pp. 292-3, referring to Greer L.J. in
Errington). I refer also to Lord Cameron's observations on this in the report of the prior proceedings (1970
S.C. 248, at p. 264). Furthermore, the terms of rule 9 (2) seem to me to be clearly against the view that
confirming was an administrative act. The cases of Darlassis (based on paragraph 15 of the First Schedule
to the corresponding English Act) and Franklin are clearly distinguishable on the facts and, by their stress on
the distinctions, appear to me to support the view which I have taken.
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Once that major question is resolved in favour of the pursuers, as I think it has been, it seems to me to be
well settled that the first defender, in confirming the compulsory purchase order, must not act contrary to the
requirements of natural justice. That is clear from the cases which I have recently mentioned and I do not
think that there was any dispute about this.

The next question is whether the pursuers have averred a relevant case against the first defender in support
of their second and third pleas in law.

I consider firstly the basis of the pursuers' third plea in law. It is quite clear, I think, that there has been a
breach of rule 9 (2) of the Rules of 1964, which I have previously quoted. That was the view of the Lord
President and Lord Cameron in the previous appeal (1970 S.C. 248). I think that the averments of actings
contrary to natural justice by the first defender are relevant in that the first defender sought and obtained new
evidence on a subject which was of importance in the inquiry without the parties being informed of it and
without their being given a chance to comment on it. I refer to the averment relating to the communication
with the County Clerk of the County of Selkirk after the close of the inquiry. I have previously mentioned it as
the second of the two lines of attack on the first defenders' actings. It seems to me that rule 9 (2) (b) is the
statutory equivalent of the principle of audi alter am partem. I am less confident that the first of the two lines
of attack on the first defender's actings, that is, the first defender's alteration of his findings of fact, is in
breach of the requirements of natural justice. It does seem to me, however, that it also is contrary to the
requirements of natural justice, in that there has been an alteration of a case which a party has to meet
without an opportunity being given to that party to meet the new case and to make submissions on it. It
follows from what I have said that, in my opinion, the pursuers have averred a relevant case in support of
their third plea in law as against the first defender.

On the view which I have taken it is unnecessary to consider the relevancy of the averments in support of the
pursuers' second plea in law against the first defender. I would only say this. The fact that actings have been
in breach of some statutory requirements of procedure would not necessarily mean that an action such as
this was relevant. As the 'procedural ultra vires' founded on in this case coincides, in my opinion, with
breaches of the requirements of natural justice, it is unnecessary to consider in what circumstances
'procedural ultra vires' which does not come within paragraph 15 in either branch can be, by itself, a relevant
basis for such an action as this. By 'procedural ultra vires' I mean what Lord Reid said in Smith (supra) at p.
761, that is, 'where some essential step in procedure has been omitted.'

I next consider the pursuers' case made against the actings of the reporter to which I have earlier referred. It
seems clear to me that there has been a breach by him of rule 9 (1) (b) (iii), which I have previously quoted.
That was the view of the Lord President and of Lord Cameron in the previous appeal (1970 S.C. 248). Prima
facie, it follows, I think, that there has been a breach of the requirements of natural justice in respect of a
failure in the principle audi alteram partem. Defenders' counsel referred me to the observations of the Lord
President in Barrs v. British Wool Marketing Board, 1957 S.C. 72, at pp. 80-82. The essence of the
submission was that, if an equal opportunity was given to both parties, it could not be said that such a
procedure was contrary to the requirements of natural justice. It was maintained that the reporter did not
create a situation where he gave an opportunity to one party to put forward arguments, and that therefore
there was no breach of the requirements of natural justice. I cannot read that submission as a general
principle which follows from the observations of the Lord President in Barrs. The Lord President is dealing
there with the particular circumstances of that case. The test, as he put it there, is: 'Was there an opportunity
afforded for injustice to be done?' The test is, as he said, whether the actings were done 'fairly' to both
parties. The answer to my mind is clear. There was an opportunity for injustice to be done to the pursuers
and the reporter's actings were not 'fair' to them.

Some other submissions were advanced by defenders' counsel in regard to relevancy. It was said that the
reporter's actings could not found a basis for this action in view of the terms of the first conclusion, which was
not based on the said compulsory purchase order being 'purported.' I have previously referred to this aspect
and to the case of London and Westcliff Properties (supra). I do not think that this submission advances the
 Page 13

defenders' case on relevancy. It was said that there were no averments that the matters which were founded
on in the pursuers' averments were of any importance to the decision of the first defender in confirming the
compulsory purchase order. I think that there were. It was further said that the question of difficulty regarding
the land on the Selkirk side and the river bed were not averred to have been raised by the pursuers as
objections to the compulsory purchase order. I do not think that this is of any importance, and I respectfully
adopt the observations of Lord Cameron on this aspect (1970 S.C. 248, at pp. 261-3). The suggestion by
defenders' counsel that failure by the pursuers to attack the first defender's confirming of amendment no. 14
was fatal to relevancy seems to me to be without substance. Apart from anything else, the Rules of 1964
apply only to the proceedings relating to the compulsory purchase order. The fact that the first defender
appointed an inquiry into both the order and the amendment cannot, in my opinion, affect the pursuers'
position in relation to the order with which they are immediately concerned.

For the reasons which I have given, I sustain the first plea in law for each of the defenders and dismiss this
action.