East Lothian Council, Re Application For Judicial Review [2001] ScotCS 61 (14 March 2001)

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[1] The petitioners are East Lothian Council. They own a dwelling house known as Catcraig Cottage, Barns Ness, by Dunbar ("Catcraig Cottage"). Since 1996 the petitioners have let Catcraig Cottage to Heather Lumsden and Andrew Ingle ("the tenants"), under a secure tenancy in terms of the Housing (Scotland) Act 1987 ("the 1987 Act").

[2] On 3 March 1999, the tenants submitted to the petitioners an application to purchase Catcraig Cottage. That application was served on the petitioners, in terms of section 61 of the 1987 Act. Following upon receipt of that application to purchase, the petitioners instructed the District Valuer to determine the market value of Catcraig Cottage, as at 3 March 1999. Those instructions were issued by the petitioners, in terms of the provisions of section 62(2) of the 1987 Act. The instructions were received by the District Valuer on 29 March 1999. On 8 April 1999, Louise Reid-Thomas, a senior valuer in the Scotland South East Office of the Valuation Office Agency, inspected Catcraig Cottage, on behalf of the District Valuer. On 13 April 1999, the District Valuer, acting on the basis of Miss Reid-Thomas' valuation of the property, determined the market value of Catcraig Cottage, as at 3 March 1999, to be £75,000. The District Valuer intimated his decision to the petitioners on 13 April 1999. In this petition, the petitioners seek reduction of the District Valuer's decision of 13 April 1999, on the ground that it was perverse. In the petition itself, the District Valuer is referred to as "the respondent".

[3] Reduction of the District Valuer's decision is opposed by the tenants, who have lodged written answers to the petition and who were represented, by counsel, at the first hearing. Although the petition was served upon the District Valuer, he has not entered the process. Accordingly, he was not represented at the first hearing before me, when the decision taken in his name came under scrutiny. The task of defending his decision accordingly fell on the tenants. The productions lodged in this petition include a letter dated 23 November 1999, which was sent to the petitioners' solicitors by the Solicitor to the Inland Revenue. The letter sets out an explanation as to the legal and factual bases upon which the District Valuer proceeded, when determining the market value of Catcraig Cottage, as at 3 March 1999. That letter forms one of the productions for the petitioners. The tenants, for their part, have lodged affidavits in the name of Miss Reid-Thomas and William Duthie, a Senior Principal Valuer, who is also employed by the Valuation Office Agency. Both those affidavits seek to defend the approach Miss Reid-Thomas adopted in valuing Catcraig Cottage and the valuation she decided upon.

[4] At the first hearing, senior counsel for the tenants sought to have the petition dismissed. He did so, under reference to the tenants' first plea in law, which is a general plea to the relevancy of the petition, and to their third plea in law, which is a plea that the petition is barred by reason of mora, taciturnity and acquiescence. Senior counsel for the petitioners, whilst resisting the motion that the petition should be dismissed, made clear that at this stage he did not seek to have the tenants' pleas in law repelled. He indicated that he would be content if the petition proceeded to a hearing of evidence, on all the issues between the parties, with the pleas in law of the parties, including the first and third pleas in law for the tenants, all being reserved, until that hearing of evidence has taken place. Before turning to the detail of the submissions, it is appropriate that I should outline the factual background to these proceedings. This emerges partly from the written pleadings. It is also dealt with in certain of the productions lodged by parties. Those productions include a number of affidavits.

[5] Catcraig Cottage lies to the east of Dunbar. It is located within a coastal strip of land, which is owned by the petitioners and lies some distance to the north and east of cement works, currently owned and operated by Blue Circle Industries plc. During 1979, Blue Circle obtained planning permission to develop an area of farmland, lying to the east of their existing cement works and immediately to the south of the coastal strip of land, owned by the petitioners. That area of farmland, which is owned by Blue Circle, is known as the North East Quarry site. In January 1999, the petitioners were contacted by Katie Cafferkey, Blue Circle's Estates Manager, who sought a meeting to discuss the extent of the petitioners' ownership of the coastal strip of land lying to the north of the North East Quarry site. At that time the petitioners were informed that Blue Circle were interested in buying some land in the area of the coastal strip. On 9 Febuary1999, a meeting took place in the petitioners' offices in Haddington. Representatives of the petitioners and Blue Circle attended the meeting. During the meeting, the petitioners were informed that Blue Circle wanted to purchase the whole of the coastal strip of land owned by the petitioners. Blue Circle indicated that they wished to do so, for the purposes of gaining access to the North East Quarry site, which they would like to develop. The coastal strip includes the land on which Catcraig Cottage is located. According to an affidavit lodged on behalf of the petitioners, Catcraig Cottage was not specifically mentioned at the meeting.

[6] Following that meeting, by memorandum dated 18 February 1999, the petitioners' Head of Property sought information about the tenancy of Catcraig Cottage from the petitioners' Social Work and Housing Department. In his reply, dated 26 February 1999, Ian Patterson, Group Manager, Community Housing Services, recorded that Catcraig Cottage was let under a secure tenancy and that the family, who occupied the property, were presently pursuing an interest in purchasing it. Mr Patterson expressed the view to his colleague, the Head of Property, that he saw little likelihood of the petitioners being in a position to offer Blue Circle any form of arrangement, which would involve Blue Circle leasing or buying Catcraig Cottage with vacant possession.

[7] As I have already indicated, on 3 March 1999 the tenants served an application to purchase on the petitioners. When the petitioners subsequently instructed the District Valuer to determine the market value of Catcraig Cottage, as at 3 March 1999, they did not mention to him Blue Circle's expressed wish to purchase the coastal strip of ground, including the land upon which Catcraig Cottage is situated.

[8] On 8 April 1999, Katie Cafferkey, Blue Circle's Estates Manager, wrote to the petitioners, seeking their permission to approach the tenants directly. She indicated that Blue Circle wished to discuss with the tenants her company's proposals for the area and a possible purchase/lease of Catcraig Cottage, should the tenants ever exercise their right to buy. The petitioners replied to that letter on 19 April 1999. In that reply the petitioners intimated that they understood that the tenants had no intention of considering any move from Catcraig Cottage. They advised Blue Circle that the tenants had a statutory right to buy Catcraig Cottage, by virtue of the provisions of the 1987 Act, and indicated that "should the tenants wish to pursue this option and ultimately purchase Catcraig Cottage, any discussions relating to the property should be held with them and would be a matter solely for them as owners of the property". That letter did not make clear to Blue Circle that the tenants had already served on the petitioners an application to purchase Catcraig Cottage, a necessary first step in the exercise by the tenants of their statutory right to buy.

[9] On 21 April 1999 Katie Cafferkey wrote to the tenants, on behalf of Blue Circle. She informed them that she was interested in discussing with them how Blue Circle might purchase or lease Catcraig Cottage, in the event that the tenants exercised their right to buy the property. On 3 June 1999, Katie Cafferkey met with one of the tenants, Heather Lumsden. They discussed the possibility of Blue Circle buying Catcraig Cottage from the tenants. At a later date in June 1999, Katie Cafferkey verbally advised Heather Lumsden that Blue Circle would pay the tenants up to £210,000, to cover the costs involved in the tenants re-locating to another property. That verbal offer was subsequently withdrawn by Blue Circle, by a letter dated 30 September 1999, which was sent to Heather Lumsden.

[10] Following receipt of the application to purchase on 3 March 1999, the petitioners took no steps to serve on the tenants a notice of refusal under sections 68 -70 of the 1987 Act. In such circumstances, by virtue of the provisions of section 63(2) of the 1987 Act, the petitioners ought to have served an offer to sell on the tenants, by 3 May 1999. On 21 June 1999, solicitors acting for the tenants wrote to the petitioners. That letter was responded to by a reply dated 25 June 1999, sent in the name of a member of the petitioners' legal staff. Although the letter dated 21 June 1999 was not lodged as a production, it appears clear from the terms of the reply that the tenants' solicitors had enquired as to when an offer to sell would be forthcoming. The reply, dated 25 June 1999, refers to the petitioners' Housing Department having a backlog in the provision of the information required for the preparation of offers to sell. The writer of the letter records that he had spoken to the relevant official and had requested that the tenants' application be treated as a matter of some urgency. The writer of the letter also apologises for the continued delay.

[11] Early in October 1999, the tenants lodged an application with the Lands Tribunal for Scotland. In that application, they sought a finding, in terms of section 71(1)(a) of the 1987 Act, that the petitioners had failed to issue timeously either an offer to sell or a notice of refusal in respect of Catcraig Cottage. The lodging of that application appears to have followed upon a telephone conversation, between an employee of the petitioners and the tenants' solicitors, during which it had been indicated that the petitioners would not be issuing any offer to sell to the tenants. The proceedings before the Lands Tribunal have been sisted, pending the outcome of this judicial review.

[12] The grounds upon which the petitioners seek reduction of the District Valuer' determination of the market value of Catcraig Cottage, as at 3 March 1999, are set out in Statement 7 of the petition. It is contended that the District Valuer's determination of the market value of Catcraig Cottage was perverse, in that it failed to take account of the particular location of the property and the demand by nearby proprietors to acquire the property. The petitioners aver that Blue Circle's interest in the North East Quarry site had become real, by at least January 1999. In their pleadings, the petitioners found upon the discussions, which had taken place between Blue Circle and themselves, in January and February 1999. They aver that before 3 March 1999 it was local knowledge, in the Dunbar area, that Blue Circle had an interest in acquiring rights in all or part of the coastal strip of land. They also aver that by 3 March 1999 it had been widely known, for many years, that Blue Circle wished to quarry the North East Quarry site, having obtained planning permission for the site in 1979. The petitioners contend that it was readily apparent to anybody that development of the North East Quarry site would require the construction of new roads in or along the coastal strip of land, upon which Catcraig Cottage is located. They also contend that it was apparent that commercial exploitation of the North East Quarry site would be substantially restricted by the presence of any residential occupiers on that strip of land. They aver that they believe there had been some contact between Blue Circle and the tenants, prior to 3 March 1999. In summary, therefore, the petitioners aver that the District Valuer erred in approaching the determination of market value on the basis that there were no potential non-residential purchasers of Catcraig Cottage and by failing to take into account Blue Circle's potential interest in the property.

[13] In their written answers to those averments, the tenants' principal response is to deny them. The tenants also aver that in determining the market value of Catcraig Cottage, as at 3 March 1999, the District Valuer took into account all relevant factors. As I have indicated, Catcraig Cottage was inspected by Louise Reed-Thomas on 8 April 1999. In her affidavit, Miss Reid-Thomas states that, during her inspection of the property, she was able to note the condition of the property and its location. The affidavit states that in reaching her view as to the market value of the property, Miss Reid-Thomas was aware of and took into account, amongst other considerations, the construction, condition and situation of Catcraig Cottage, sales evidence of comparable properties in the area, Blue Circle's planning permission to extend their quarrying operations into the North East Quarry site and the fact that Blue Quarry were, as at 3 March 1999, potential special purchasers of Catcraig Cottage. Miss Reid-Thomas indicates, however, that along with the rest of the market, she had no information whatsoever that Blue Circle had any interest in buying the property. The tenants' averments reflect, to some extent, the contents of that affidavit. They go on to contend that as at 3 March 1999, information in the public domain did not indicate that Blue Circle were in a position to expand their quarry into the North East site or that they required to purchase Catcraig Cottage. They aver that the actions of Blue Circle after 3 March 1999 are irrelevant in considering the District Valuer's decision. In the alternative, the tenants also aver that if the District Valuer's approach was that there was no potential "non-residential" or special purchaser, whose interest fell to be taken into account, such an approach would not have resulted in an error in law or have materially affected the valuation of Catcraig Cottage. In this regard, the tenants refer to the terms of the Royal Institute of Chartered Surveyors Appraisal and Valuation Manual, which is lodged by them as one of their productions. Finally, as far as the taking of the decision is concerned, the tenants aver that in the event that there was any defect in the District Valuer's valuation, such defect arose on account of the petitioners' own failure to properly instruct the District Valuer.

[14] In his submissions in support of the tenants' first plea in law, senior counsel for the tenants accepted that a decision of a District Valuer was susceptible to judicial review (see, R v Kidderminster District Valuer, West Midlands Police Authority and the Secretary of State for the Home Department [1991] RVR 197). Moreover, it is clear from the Judgment of Nolan LJ (as he then was), in Kidderminster, that any such judicial review requires to proceed on the basis of the well established principles upon which the Court's jurisdiction of judicial review is normally exercised. Senior counsel for the tenants argued that the present petition proceeds upon the assertion that Miss Reid-Thomas did not take into account a matter which she states in her affidavit that she did take into account, namely that Blue Circle were a potential special purchaser of Catcraig Cottage. He drew attention to the fact that the petitioners' averments on this matter (at Pages 11B-C and 12F-13A of the Record) are contrary to the terms of Miss Reid-Thomas' affidavit, to which I have already referred. He submitted that the averments at Page 11B-C, as to the District Valuer's approach, were not such as to amount to relevant averments that the District Valuer had acted in error, when he reached his decision as to the market valuation of Catcraig Cottage. Counsel for the tenants stressed that Blue Circle's position as a potential special purchaser was entirely distinct from and should not be confused with any actual interest in acquiring the property, which they may have had, prior to 3 March 1999. Counsel stressed that in their pleadings, the petitioners do not aver that the District Valuer was told about Blue Circle's actual interest in purchasing Catcraig Cottage, when he was instructed to determine the market value of the property. In these circumstances, the averments at Page 11C-E, as to the communings between Blue Circle and the petitioners, during January and February 1999, were irrelevant. Counsel for the tenants submitted that the correct approach for the Court was to test the decision of the District Valuer against the information that was before Miss Reid-Thomas, at the time that she carried out the valuation. She required to comply with the instructions given to the District Valuer, in the light of the information then available to her. Counsel argued that before the District Valuer's decision could be successfully challenged by the petitioners, they would require to aver and prove that the District Valuer should have known that as at 3 March 1999, Blue Circle has an actual interest in acquiring Catcraig Cottage, for the purposes of developing the North East Quarry site. This the petitioners did not aver nor offer to prove. It was stressed that the petitioners conceded that when they instructed the District Valuer to value the property, they had not informed him of any actual interest that Blue Circle had, as at 3 March 1999, in acquiring the property. It was also stressed that the petitioners did not aver that had the District Valuer followed the approach, which the petitioners aver that Miss Reid-Thomas failed to follow, then the market valuation of Catcraig Cottage would have been different from the figure of £75,000 at which it had been determined. Nor had they produced any affidavit to a similar effect. In this regard, it was submitted that the averments at Page 8A-C of the Record, relating to the sum of £210,000 having been offered by Blue Circle to the tenants in June 1999, were insufficient to fill this gap in the petitioners' case. It was stressed that the tenants do not admit to having been aware of Blue Circle's actual interest in purchasing Catcraig Cottage, prior to 3 March 1999. In summary, the petitioners had not pled a relevant case entitling them to the decree of reduction that they seek.

[15] Senior counsel for the petitioners accepted that no inference, as to the correctness or otherwise of the District Valuer's decision, fell to be drawn from the fact that the District Valuer had chosen not to defend the judicial review proceedings in which he had been called as a respondent. As I have made clear, senior counsel for the petitioners' primary position was that in view of the factual issues in dispute, between the parties, the petition should proceed to proof. He submitted that such a proof would be competent, in terms of Rule of Court 58.9 and he cited Kelly v Monklands District Council 1986 S.L.T.169, as an example of a petition in which a proof had taken place, after earlier hearings, at which the Court had relied upon the contents of affidavits. Joobeen v University of Stirling 1995 S.L.T.120 is another example of a petition in which a proof took place in proceedings for judicial review.

[16] Counsel for the petitioners' basic position was that at this stage the Court should not take account of the contents of the affidavits lodged on behalf of the tenants. He did suggest, however, that were the affidavits of Louise Reid-Thomas and William Duthie to be looked at in detail, their contents would appear somewhat "Delphic", at least where they deal with the position of Blue Circle, who they describe as being in the position of a potential special purchaser of Catcraig Cottage. Counsel submitted that such a description was in the nature of a term of art, whose definition and whose application in the process of determining the market value of Catcraig Cottage had not been fully explained by either Miss Reid-Thomas or Mr Duthie. Counsel submitted, however, that from a reading of her affidavit, it appears clear that Miss Reid-Thomas had directed herself that whether Blue Circle might be prepared to buy was not, as a matter of law, relevant to her valuation. It was clear that she had proceeded on the basis that all that was relevant was whether other speculators in the market, as at 3 March 1999, might have thought that Blue Circle might seek to buy the property, at some unspecified time in the future, and thus enable a speculator to make a profit, by onward sale of the property. It was submitted that by proceeding on such a basis, Miss Reid-Thomas had misdirected herself and had erred.

[17] Senior counsel for the petitioners also submitted that the petitioners had set out, in their written pleadings, sufficient averments as to what information was in the public domain to entitle them to proceed to proof. He pointed to averments at Page 10C - D that the District Valuer's determination of the market value of Catcraig Cottage failed to take account of its particular location and the demand from nearby proprietors to acquire the property. He founded on the averments at Page 11B - C to the effect that the District Valuer gave no consideration to the potential interest of Blue Circle as purchasers. He also founded upon the averments at Pages 11E - 12A to the effect that, before 3 March 1999, it had been local knowledge in the Dunbar area that Blue Circle had an interest in acquiring rights in all or part of the coastal strip of land, upon which Catcraig Cottage is situated, and that Blue Circle wished to develop quarrying in the North East Quarry site, lying immediately to the south of that coastal strip of land. In addition, senior counsel for the petitioners founded upon the averments at Page 12 A - C to the effect that it was readily apparent to anyone, who gave consideration to the location and extent of the North East Quarry site, that development of that site would require the construction of new roads in or along the coastal strip and that the commercial exploitation of the North East Quarry site would be substantially restricted by the presence of any residential occupiers on the coastal strip of land, the tenants being the only occupiers that fell into such a category. There are also averments that, by 3 March 1999, it was readily apparent that occupation and control of the coastal strip was of great commercial importance to Blue Circle. Senior counsel for the petitioners also relied upon the fact that the petitioners offer to prove Blue Circle's contacts, prior to 3 March 1999, with a Camping and Caravan Club located within the coastal strip of land and with the tenants themselves. The petitioners' senior counsel submitted that those averments, if proved, would entitle the Court to hold that Blue Circle were in the market as at 3 March 1999. He also argued that it would be open to the Court to hold that, in the light of what was readily apparent to Miss Reid-Thomas, she ought to have enquired of the petitioners whether Blue Circle had expressed any interest in purchasing all or any part of the coastal strip from the petitioners. Senior counsel submitted that if, in the light of the facts the petitioners offers to prove, Miss Reid-Thomas failed to make enquiry of the petitioners as to the actual intentions of Blue Circle, that in itself would be sufficient for the petitioners to succeed in the present petition. He submitted that the petitioners did not require to aver the figure at which the market value, as at 3 March 1999, ought to have been determined. That was because if the judicial review proceedings are successful, it would not be for the Court to determine a substitute figure. The issue would go back to the District Valuer for re-determination.

[18] As to the approach the Court should follow in a judicial review of this nature, senior counsel for the tenants referred me to Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority (1990) 61 P. & C.R. 343 and in particular to a passage from the Judgment of Glidewell L.J. at page 352 :

[19] Reliance was also placed upon Shetland Line (1984) Ltd v Secretary of State for Scotland 1996 SLT 653 which makes clear that irrationality, as a ground for judicial review, can involve an error of fact, provided such error relates to facts material to the decision under review. That case also illustrates that it is necessary for a petitioner challenging a decision, by way of judicial review proceedings, to demonstrate that the opportunity to appreciate the true situation was before the decision taker, at the time that his decision was taken. It is not sufficient that the error is only discoverable with the benefit of hindsight. On that last point counsel for the tenants also referred to Holt v Inland Revenue Commissioners [1953] 1 W.L.R 1488 and the Judgment of Danckwerts J. at 1492.

[20] As to the construction of the term "market value", as it is used in section 62(2) of the 1987 Act, both counsel referred to Raja Vyricherla Naryana Gajapatiraju v The Revenue Divisional Officer, Vizagapatam [1939] AC 302, a case before the Privy Council on appeal from the High Court of Madras, in which the advice of the Board was delivered by Lord Romer. That case dealt with the assessment of compensation for land compulsorily acquired, by taking into consideration, amongst other factors the market value of the land. Senior counsel for the petitioners also cited Glass v Inland Revenue 1915 S.C. 449, that case having been before the Privy Council in Raja. He also referred to a passage from the Judgment of Hoffman L.J. (as he then was) in Inland Revenue Commissioners v Gray [1994] STC 360, at pages 371g - 372g. The researches of neither counsel, however, led to the discovery of any authority dealing directly with the construction of section 62 of the 1987 Act or of any similar statutory provision, in which the term "market value" forms the basis of valuing residential property, being purchased by a tenant in exercise of his statutory right to buy.

[21] From both Raja and IRC v Gray some guidance can be obtained as to the considerations that require to be taken account of, when the valuation of property falls to be assessed on the basis of market value. In particular the cases provide guidance as to how to deal with the situation in which there exists a potentiality of the land, which is to be valued, being used for a purpose or purposes different from the purpose for which the land is being used, at the date at which the land falls to be valued. Both authorities indicate that the valuer of the land should take into account information in the public domain, to the effect that an individual prospective purchaser may have a particular reason for paying a higher price than other purchasers may be prepared to pay, but also have regard to the fact that such an individual prospective purchaser might not, for whatever reason, buy the land in question, in the event that it actually became available on the market. As Hoffman L.J. put it, at Page 372d in IRC v Gray, "The valuation is thus a retrospective exercise in probabilities, wholly derived from the real world, but rarely committed to the proposition that a sale to a particular purchaser would definitely have happened". On the basis of those authorities, senior counsel for the petitioners argued that it was open to the petitioners to found on the apparent failure of the District Valuer to take in account information available to her, not only as to Blue Circle's potential interest in Catcraig Cottage, but also as to their actual intentions - insofar as they were ascertainable by her. For his part, senior counsel for the tenants drew attention to the fact that the statutory language being construed in IRC v Gray, namely section 38 of the Finance Act 1975, was significantly different to the terms of section 62 of the 1987 Act.

[22] It is clear that petitioners' pleadings are not set out as logically and carefully as they might have been. At times there appears to be some confusion in the mind of the pleader as to whether Blue Circle falls to be treated as a potential special purchaser or as a neighbouring proprietor, who had by 3 March 1999, an actual interest in purchasing Catcraig Cottage. The averments in Statement 6 of the petition, as to events that occurred on 3 June 1999 and thereafter, are also of doubtful relevancy, as well as being framed in somewhat confusing language. The dispute between the parties relates to what was the market value of Catcraig Cottage as at 3 March 1999, not to what is the market value of the property, as the pleader appears to suggest at Page 8B of the Record. Having said all of that, there was no dispute between the parties that in the present proceedings, it is appropriate for the Court to seek to identify what Miss Reid-Thomas ought to have taken into account about Blue Circle, before reaching her decision as to the market value of Catcraig Cottage, as at 3 March 1999 and what Miss Reid-Thomas did in fact take into account.

[23] From the terms of the Record, it is clear that there is a dispute between the parties as what was readily apparent as to Blue Circle's intentions in relation to the coastal strip of land, as at 3 March 1999. There is also, ex facie of the Record, a clear dispute between the parties as to whether the District Valuer gave any consideration to the existence and nature of any such intentions and to the potential interest of Blue Circle, as purchasers of Catcraig Cottage. I refer in particular to the petitioners' averments at Page 11B - C of the Record, which are denied by the tenants. I appreciate, of course, that the petitioners' averments on these latter points are also contradicted by the terms of Miss Reid-Thomas' affidavit. Whilst it is competent for affidavits to be used as a substitute for oral evidence in judicial review proceedings, in my opinion it may not be appropriate for the Court to rely on the contents of such affidavits, in cases where there are important issues of fact in dispute between the parties. Moreover, even if it is appropriate for me to have regard to the terms of Miss Reid-Thomas' affidavit, I consider that there is force in the submission of senior counsel for the petitioners that the terms of her affidavit are somewhat Delphic. Paragraph 5 of the affidavit contains very bald assertions that Blue Circle are potential special purchasers of Catcraig Cottage, but that along with the rest of the market Miss Reid-Thomas had no information whatsoever that Blue Circle had any interest in buying the property. In these circumstances, I have reached the view that it would not be appropriate for me to resolve the issues of fact between the parties on the basis of such affidavits as have been lodged, when read along with the written pleadings and the documentary productions. In my opinion, factual issues of such significance ought to be resolved after the leading of oral evidence, which is subject to cross-examination.

[24] Furthermore, I have reached the view that, after hearing evidence, it might be open to the Court to infer from the nature of Blue Circle's current quarrying operations, the existence of the planning consent for the North East Quarry Site and the geography of the area, in which Catcraig Cottage is located, that when Miss Reid-Thomas inspected the property in April 1999, certain matters ought to have been readily apparent to her. These include the matters upon which the petitioners make averment at Page 12B - C, namely that the development of the North East Quarry site would require the construction of new roads in the coastal strip, that occupation and control of the coastal strip was of great commercial importance to Blue Circle and that Blue Circle's commercial exploitation of the North East Quarry would be substantially restricted by the presence of any residential occupiers on the coastal strip. Such issues would, of course, have to be addressed in the light of the opportunities available to Miss Reid-Thomas, after the District Valuer was instructed and before she reached her determination of the market value of Catcraig Cottage. None of these factual issues are dealt with in her affidavit. Moreover, such factual issues involve more than merely reviewing Miss Reid-Thomas's determination of the existence or non-existence of facts, which ought to be left to her discretion, as the decision maker. They involve addressing whether or not she actually addressed the questions of fact, that were properly before her, whether she adopted the correct legal approach in addressing the valuation exercise upon which she was engaged and whether she took all relevant considerations into account, when she reached her view as to the market value of the property.

[25] If after proof, any of the factual issues between the parties, to which I have just referred, were to be resolved in favour of the petitioners, then in my opinion it would be open to the petitioners to argue, with some prospects of success, that, Miss Reid-Thomas' determination was perverse. They would also have prospects of arguing successfully that had Miss Reid-Thomas taken into account the considerations that they aver she failed to take into account, there would have been at the very least a real possibility that her determination of the market value of Catcraig Cottage would have been different from £75,000. At this stage, it would not be appropriate for me to express any more concluded views on such issues. In my opinion, they fall to be determined by the Court after oral evidence has been led. All I have concluded is that I am not persuaded that the petitioners have no prospects of establishing, on the basis of evidence led under reference to their pleadings, that the District Valuer's decision was perverse and should be reduced. In these circumstances, having regard to the submissions that I have heard, I am not, at this stage, prepared to sustain the first plea in law for the tenants.

[26] I turn to deal with the tenants' plea of mora, taciturnity and acquiescence. As with the tenants' plea to the relevancy, the petitioners are content that this plea should be reserved, pending a proof. The issue of mora is dealt with fairly briefly in the pleadings. The history of events, following upon service of the application to purchase, is set out above, in paragraphs 10 and 11 of this Opinion. The tenants aver, at pages 17D - 18B of the Record, that the petitioners were required by the provisions of section 63(2) of the 1987 Act to serve an offer to sell on the tenants by 3 May 1999. Despite repeated calls to issue an offer to sell, they failed to do so. Furthermore the petitioners took no steps to challenge the District Valuer's valuation until 9 November 1999. In their written pleadings, however, the tenants make no averment that they have been prejudiced by that delay.

[27] Senior counsel for the tenants did argue, however, that the delay that had occurred between the date on which the valuation was intimated to the petitioners, 13 April 1999, and the date on which the present proceedings were raised, 9 November 1999, had been detrimental to good administration. Reference was made to Kwik Save Stores Ltd v Secretary of State for Scotland 1999 SLT 193 and Dumfries and Galloway Council v Scottish Ministers (Unreported 2 August 2000). No explanation had been offered for the delay of almost seven months, which was over twice the period with which judicial review proceedings require to be initiated in England. The provisions of section 71(1)(a) of the 1987 Act entitled the tenants to apply to the Lands Tribunal, by reason of the petitioners' failure to have timeously issued, either an offer to sell or a notice of refusal. For the purposes of section 71(1) (a), in respect of an offer to sell in terms of section 62(3), "timeously" was a period of two months, following upon service of the application to purchase on 3 March 1999, and, in respect of a notice of refusal, in terms of sections 68-70 of the 1987 Act, "timeously" was a period of one month, following upon service of the application to purchase. Senior counsel also argued that the tenants had suffered some prejudice, by reason of their having required to lodge an application with the Lands Tribunal, on account of the petitioners' delay in issuing an offer to sell.

[28] In reply, senior counsel for the petitioners submitted that it was clear the tenants had not been prejudiced by any delay on the part of the petitioners in raising the present proceedings. If their purchase of Catcraig Cottage proceeded, the market value of the property would be fixed as at 3 March 1999. If, before the purchase was completed, the market value of Catcraig Cottage were to fall, the tenants would not be bound to proceed with the purchase. They could walk away from the proposed transaction, without incurring any financial liability to the petitioners. Moreover, section 66A of the 1987 Act affords the tenants the opportunity of seeking to offset against the price fixed, under section 62, at least some of the rent paid by the tenants, following upon the petitioners' failure to timeously issue an offer to sell. In these circumstances, delay on the part of the petitioners was not prejudicial per se to the tenants.

[29] Senior counsel for the petitioners explained that the petitioners accepted that there were no grounds for serving a notice of refusal on the tenants. He pointed out that the tenants had been able to make application to the Lands Tribunal by 3 May 1999. They had not done so until October 1999. He suggested that during that period of five months, there had been no dealings between the petitioners and the tenants. Accordingly the petitioners had had no means of knowing whether the tenants were going to proceed with the transaction or not. He suggested that local authorities were not in the habit of seeking judicial review of decisions that might not have any practical effect upon them. He stressed that the petitioners had raised the present judicial review, within three weeks of the tenants lodging their application with the Lands Tribunal. Indeed, senior counsel for the petitioners went further and submitted that, in view of the particular location of Catcraig Cottage, situated as it is near cement works and close to the sea, the petitioners could easily have understood that the tenants did not wish to proceed with the transaction - at least until they had received confirmation that Blue Circle would purchase the property from them, at an acceptable price. In the whole circumstances, whilst he did not seek to criticise the tenants for any delay on their part, in making application to the Lands Tribunal, senior counsel for the petitioners submitted it was clear that the tenants had not suffered any prejudice by reason of the fact that no offer to sell had been issued over the period between 5 May 1999 and October 1999, nor by reason of the fact that the judicial review proceedings had not commenced until November 1999. Nor had the petitioners' actings over those periods of time constituted prejudice to good administration. Moreover the tenants' pleadings contained no averments as to prejudice of any nature. During the course of his submissions, senior counsel for the petitioners referred to King v East Ayrshire Council 1998 SC 182 and Singh v Secretary of State for the Home Department 2000 SLT 533.

[30] In my opinion the Opinion of Lord Nimmo-Smith in Singh very succinctly summarises the law relating to a plea of mora, taciturnity and acquiescence, as it falls to be applied in proceedings for judicial review. In paragraph [11] of his Opinion he states:

[31] Having sought to apply the approach outlined by Lord Nimmo-Smith in Singh, I have reached the view that I should accede to the petitioners' motion that the plea of mora, taciturnity and acquiescence should not be determined, without a hearing of evidence. The submissions I have heard included a number of ex parte statements as to the history of events between 5 May 1999 and October 1999. Submissions were made on behalf of both the tenants and the petitioners as to the presence or absence of prejudice to the tenants. Those submissions were not heralded by any written pleadings at the instance of either the petitioners or the tenants. Having regard to the submissions I received, I am not satisfied that the plea falls to be sustained. On the other hand, the petitioners have not sought to have it repelled. In these circumstances, I have reached the view that the correct course of action for me to follow is to reserve that plea, until a proof has taken place. That being the course of action I have chosen to adopt, it would not be appropriate to say anything further about the detail of the submissions I received.

[32] In light of the views I have reached, the petition will be put out By Order on 21 March 2001 for a discussion as to further procedure.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> East Lothian Council, Re Application For Judicial Review [2001] ScotCS 61 (14 March 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/61.html Cite as: [2003] RVR 123, [2001] ScotCS 61

Scottish Court of Session Decisions