London and Clydeside Estates v Aberdeen District Council: HL 8 Nov 1979

Identifying ‘maandatory’ and ‘regulatory’

The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House considered the consequences of a failure to comply with a procedural requirement, and the different classes of such requirements: ‘The contention was that in the categorisation of statutory requirements into ‘mandatory’ and ‘directory’, there was a subdivision of the category ‘directory’ into two classes composed (i) of those directory requirements ‘substantial compliance’ with which satisfied the requirement to the point at which a minor defect of trivial irregularity could be ignored by the court and (ii) those requirements so purely regulatory in character that failure to comply could in no circumstances affect the validity of what was done.’
Lord Hailsham LC said: ‘When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. ‘ and ‘though language like ‘mandatory,’ ‘directory,’ ‘void,’ ‘voidable,’ ‘nullity’ and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind.’

Lord Hailsham of Saint Marylebone LC, Lord Wilberforce, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Keith of Kinkel
[1980] SC (HL) 1, [1980] 1 WLR 182, [1979] UKHL 7
Land Compensation (Scotland) Act 1963 25
AppliedBrayhead (Ascot) Ltd v Berkshire County Council CA 1964
Planning permission had been granted subject to conditions, but no reasons had been given for the imposition of those conditions. The Order required the local planning authority to state its reasons in writing if it decided to grant planning . .
CitedAgricultural, Horticultural and Forestry Industry Training Board v Kent CA 1970
A notice of assessment to a levy which was served by the appellant Board failed to provide an address for service of a notice of appeal as required.
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CitedRayner v Stepney Corporation 1911
. .
CitedJames v Secretary of State for Wales HL 1968
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CitedEdwick v Sunbury-on-Thames Urban District Council 1962
. .
CitedJames v Minister of Housing and Local Government 1966
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Held: A planning permission . .
CitedCalvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .

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Lists of cited by and citing cases may be incomplete.

Litigation Practice, Administrative

Leading Case

Updated: 11 November 2021; Ref: scu.180917