NOTE

Alexander Park & Son v City of Glasgow Council

This application was lodged with the Tribunal in 1998 and was, thereafter, regularly sisted. It eventually came before us by way of debate on the issue of time bar. At the hearing in Glasgow on 10 February 2004, Mr Liam Entwistle, Solicitor, Glasgow appeared on behalf of the applicants and the respondent authority was represented by Michael Hennessy, their Assistant Chief Solicitor.

The circumstances were unusual in that there are no pleadings of any sort touching on the issue and, indeed, no formal answers from the respondents. However, parties were agreed that the scope of debate was adequately covered by the “Paper bundle for the claimants” which was lodged under cover of a letter of 5 February 2004, and the comprehensive outline of argument intimated to the Tribunal and the respondents. We think that the solicitors are to be congratulated on this sensible approach.

The basis of the argument was the agreed fact that in respect of the relevant subjects – described below as the “first subjects” – the date of vesting was 7 February 1990. The Town and Country Planning (Scotland) Act 1972 provides in Schedule 24: “36. – (1) The time within which a question of disputed compensation, arising out of an acquisition of an interest in land … may be referred to the Lands Tribunal shall be six years from the date at which the person claiming compensation, or a person from whom he derives title, first knew, or could reasonably be expected to have known, of the vesting of the interest by virtue of those paragraphs”. Although it is not entirely clear to us whether the relevant date is, indeed, 7 February or 12 March 1996, or some other date early in 1996 nothing turns on the precise date in this case. No application was lodged with the Tribunal until 27 November 1998. The application is on the face of it out of time. The argument turned on the question of whether in the whole circumstances the respondents could be held to have “waived” the right to take this plea.

Authorities

Amour v Scottish Milk Marketing Board 1938 SC 465
Armia Limited v Daejan Developments Limited 1979 SLT 147
Co-operative Wholesale Society v Chester Le Street District Council 1997 (73 P & C R 111)
Gatty v Maclaine 1921 SC (HL) 1
Kammins Ballrooms Co v Zenith Investments (Torquay) [1971] A.C. 850
Lousada & Co Limited v J E Lessor Properties (Limited) 1990 SC 178
The Royal Bank of Scotland plc v Clydebank District Council 1992 SLT 356
Stair Memorial Encyclopaedia volume 16, paragraphs 1601 to 1643

Facts

We do not think that any of the under-noted material is contentious but it has not yet been admitted or proved. The debate proceeded on the basis that if there was held to be insufficient basis for challenge of the respondents’ right to rely on the time bar, we could forthwith reject the application as out of time. However, it was agreed that it would not be possible, at this stage, to make a positive finding in favour of the applicants. The respondents had had no opportunity to set out their position in any formal way. They would have to consider whether there was any dispute on relevant issues of fact. A preliminary proof restricted to questions of time bar might be required if there was no agreement.

The application arises out of the compulsory acquisition of parts of Patterton Farm for the purposes of a roads scheme. Because of administrative boundaries, the farm was the subject of two separate CPOs: the Strathclyde Regional Council (Ayr Road Route, Patterton Farm) CPO 1987 and the Gretna-Stranraer-Glasgow-Stirling Trunk Road (M77) (City of Glasgow District boundary to Malletsheugh) (Ayr Road Route) CPO 1992. The date of the General Vesting Declaration in relation to the first CPO was 12 March 1990 and, in relation to the second, 7 December 1992. As the name suggests, the first CPO was at the instance of Strathclyde Regional Council (“SRC”). Following local government reorganisation, that body was, for present purposes, replaced by Glasgow City Council. It was not disputed that the latter were to be taken as standing wholly in the shoes of the former and we use the terms “respondents” or “acquiring authority” to refer to both these bodies regarding them as one for present purposes. For convenience we refer to the subjects taken by the first CPO as the “first subjects”. The respondents are only concerned with the claim insofar as relating to these subjects. The larger take of land was in respect of the second CPO (the “second subjects”). The acquiring authority in that context was the Scottish Development Department (“SDD”).

Prior to the respective dates of vesting there had been a good deal of discussion of the new roads scheme. It was clear that it would have a serious impact on the applicants’ farming business. Discussion of this had continued from about 1986. Various proposals were made for accommodation works to limit the overall impact. Although nothing was made of this in the debate, the bundle purports to disclose that practical entry was not taken to the farm until January 1995 and that, by that stage, a complex package of accommodation works including an access over-bridge had been agreed. It appears that the Scottish Office (as National Roads Authority) had overall responsibility for the roads scheme and negotiated all these matters.

In any event, it is clear that the initial discussions demonstrated the potential complications of treating the two CPO schemes as separate for purposes of compensation. There would be an obvious risk of confusion and duplication. Although the need for two CPOs arose from the fact that the farm fell within two separate administrative areas, the impact on the farm business arose from the road building project as a whole. Attempts to identify individual heads of loss as attributable to one CPO rather than the other would have given rise to obvious difficulties. Negotiation with two different bodies would inevitably have led to duplication of work and risk of duplication of claims and compensation. It was accordingly agreed in principle that all questions of compensation would be dealt with as a single claim. It was agreed that the District Valuer for Renfrew would negotiate all compensation arising from the overall roads scheme and apportion the compensation between SRC and SDD. Confirmation of this can be found in the terms of a letter from SRC to the said District Valuer dated 22 February 1990.

Negotiations proceeded as expected. No suggestion has yet been made that the applicants, or their agents, were in any way dilatory in processing their claim or providing information on request. Indeed, the applicants intimated their first formal claim to SRC under cover of a letter of 9 February 1990 and a payment of £15,000 to account was made at or about that time. Negotiations were carried out between the surveyor and Mr Syme, an employee of the District Valuer acting on his behalf. For present purposes it can be assumed that the applicants did all that could reasonably have been expected of them to bring matters to a head. Although practical entry had not in fact taken place until early 1995, by December 1995 a substantial measure of agreement had been reached. The surveyor wrote on 18 December to SRC at their Hamilton office making an application for payment to account of compensation.

On 18 January 1996 Mrs Carlin, the Chief Solicitor (Property) of SRC telephoned the surveyor to discuss the matter. It appears that she explained that she had no adequate records, perhaps because responsibility had been transferred from the Hamilton office. The surveyor accordingly sent a letter of the same date giving an explanation of the circumstances in the following terms:

“Thank you for your telephone call this afternoon concerning my letter of 18th December, constituting an application for payment to account of compensation under Section 48 (4A) of L.C.(S)A., 1973 on behalf of my clients, Alexander Park & Son.

This is a somewhat complex scheme which suffered a series of delays from its originally intended starting date (October, 1985) until actual commencement this time last year.

Because the administrative boundary between City of Glasgow and Eastwood District passes through the motorway acquisition area within the lands of Patterton Farm, the farm itself is affected by two entirely separate and discrete Compulsory Purchase Orders: the first is that made by the Regional Council, as referenced above, and in respect of which Vesting was made as at 12th March, 1990; the second was the Gretna – Stranraer – Glasgow – Stirling Trunk Road (M.77) (City of Glasgow District Boundary to Malletsheugh) (Ayr Road Route) C.P.O. 1992, which Vested at 7th December, 1992. The position is also of some curiosity value because the Region’s C.P.O. covers only two plots of land, both being part of Patterton Farm.

Despite – or perhaps because of – the fact that, technically speaking, we have two entirely separate C.P.O.’s – and therefore two separate schemes – affecting the same farm and in respect of the same construction project, it was agreed at a very early stage (around 1986/87) that the Regional Council would delegate their involvement for compensation assessment and negotiation purposes to the Valuation Office, rather than refer the matter to their own Estates Department. This makes good practical sense, as the Valuation Office are already instructed by the Secretary of State on all other areas of the scheme, particularly including the other sections directly affecting Patterton Farm.

The District Valuer already in place and acting on these matters since the practical commencement of the works is Mr. John Syme, District Valuer (Scotland South West) at 200, West Regent Street, Glasgow, G2 4JJ. His correspondence reference on this case is: 49450/1 JCS, and his telephone number is: 0141 – 221 – 8584.

Mr Syme and I have already agreed that the only practical means of approach to the situation is to treat all claims in respect of Patterton Farm on a unified basis, regardless of which particular C.P.O. they might be argued as arising under. Although it may be necessary for us to allocate the total claim as adjusted between the two different Orders and Authorities, this should not be a matter of difficulty when that stage is reached.

So far as your Council’s C.P.O. and interest is concerned, I can confirm that a payment to account of £15,000 was received shortly after the Vesting Date. This was agreed at the time with the District Valuer (Ayr) and at that very early stage was regarded purely as a token payment, being so far in advance of an actual starting date for works. By contrast, the amalgamated provisional draft claim which was submitted to the District Valuer just before Christmas was for a figure in excess of £300,000, which is likely to be far short of the final total when all continuing disturbance matters are taken into account up to the practical completion date.

I understand that Mr Syme will be reporting to you on this very shortly, with recommendations for payment.

If you are in further doubt about this, please do not hesitate to telephone me again, as in all the circumstances I am most anxious for the matter to be processed and our clients paid, with the minimum possible delay.

I am sorry that my letter of 18th December might appear to have been misdirected, and that it has in consequence taken some time to reach you. It was however addressed to the Regional Council’s Hamilton Office, from which originated all earlier correspondence on the matter, including the C.P.O. itself.”

Several important points emerge from this letter. In the first place, it sets out clearly the applicants’ understanding that it had been agreed that the Regional Council would delegate their involvement for compensation, assessment and negotiation purposes to the Valuation Office. Secondly, it narrates an explicit agreement that the only practical means of approach to the situation is to treat all claims in respect of Patterton Farm on a unified basis. The letter also shows that in January 1996 “continuing disturbance matters” were still to be taken into account. It is plain not only that there was no need but that there would have been no point in an application to the Lands Tribunal at that time. There was no suggestion of a dispute.

We do not know whether there was any written reply to this letter. But it demonstrates that immediately prior to any limitation date, the acquiring authority knew that there was a valid claim being pressed by the applicants; that the applicants regarded the District Valuer as fully authorised to act in relation to compensation matters; and that it had been agreed that claims in respect of the two CPOs would be treated as one. It is not suggested that there would have been any justification for the acquiring authority attempting to correct or change that impression, or that anyone on their behalf made any attempt to do so.

For present purposes it must be assumed that negotiations proceeded appropriately after that letter. We saw a record of a meeting on site with Mr Syme in October 1996 which recorded that although the claim would initially be dealt with on an undivided basis, final allocations for reporting purposes would be made. Agreed terms of apportionment for different aspects of the claim were set out. This confirms that the District Valuer was continuing to act on the basis of a scheme whereby a total sum would be found for the whole loss arising from the two CPOs and would be apportioned on an agreed basis. In other words, it shows the District Valuer acting on behalf of the respondents and still treating assessment of compensation for the first subjects as part of assessment of the second subjects at a date well after the expiry of the limitation period.

The applicants, through their surveyor, continued to press for a further advance and on 3 December 1996 Mr Syme wrote to confirm that he would recommend payment of a further advance. We were told at debate that the surveyor had in fact confirmed that the terms of that letter were acceptable. This was probably by a letter of 13 December 1996. Accordingly, it was expected that a payment of £54,000 would be made at that time.

However, by letter of 14 March 1997 Mr Syme wrote to the surveyor saying: “With regard to the land inside the Glasgow boundary, Glasgow City Council Property Services Department have advised me that the claimant in this case has no longer an enforceable compensation claim against the Council as the right to have compensation agreed or awarded only subsists for a period of six years from the date of vesting of the compulsory purchase order. I have been instructed by the City Council to cease negotiations on behalf of the Council in this matter. I will of course continue to negotiate with you with regard to the land outwith the Glasgow boundary”.

This letter appears to confirm that Mr Syme’s express authority to negotiate on behalf of the respondents had continued until about March 1997. By his continued negotiation he had made it plain that he at least did not intend to take any plea of time bar.

In fact, the District Valuer, through Mr Syme, had to continue to negotiate with the applicants’ surveyor after 14 March 1997 in relation to loss flowing from acquisition of the first subjects because this was the only practical way of reaching an appropriate figure in respect of the second subjects. Negotiation continued until all elements of claim in relation to both subjects were agreed. On or about 3 April 2000 the District Valuer intimated his proposed total calculation and a proportional split based on 72.65% for the second subjects and 27.35% for the first subjects. After some correspondence the District Valuer issued a revised calculation of 12 June 2000. On 15 June the applicants accepted his figures insofar as relating to the first subjects. They proposed minor changes in respect of the second subjects. Full agreement was eventually reached in respect of the latter and we are not further concerned with these subjects.

As an illustration of the complexity of the calculation, however, it may be narrated that it appears from the averments in the Closed Record of 13 November 2003 in the action at the instance of the surveyor that the District Valuer required to make his calculations in respect of over a dozen different heads all having to be apportioned between the subjects affected by the first and second CPOs. This tends to confirm, if confirmation was thought necessary, that the original agreement to assess matters as one was eminently sensible if not, indeed, unavoidable. It also appears that no final assessment of figures could have been made in relation to the first subjects until about the time of these final proposals in summer 2000. The figure calculated by the District Valuer in respect of the first subjects was a total of £137,302 with interest.

There seems little scope for dispute that the sum arrived at by the District Valuer is a realistic measure of the loss arising from the compulsory acquisition of the applicants land in the public interest. As we have seen, the applicants have always actively maintained their claim. The letter of 18 January 1996 is a model of clarity in succinctly bringing the acquiring authority up to date when their own records had, apparently, failed. Negotiations with the duly authorised agent of the local authority were proceeding smoothly. There is no suggestion that they could or should have been concluded before 2000. We are told that the respondents now decline to pay any compensation because of the applicants failure to take a procedural step in 1996 which would have been regarded by everyone at the time, if they had considered the matter, to be a complete waste of effort and expense. To prevent the expiry of the limitation period, the claimants would have had to incur the trouble and expense of an application to the Tribunal. Like the present application it would have proceeded on a narrative that it was unnecessary at the time. The Tribunal would have been asked to sist. The application would have served no useful purpose. It cannot be suggested that it would have been necessary to alert the acquiring authority to the fact that there was still a pending claim. The letter was more than sufficient for that practical purpose.

It may be observed, at this point, that there is no written material before us emanating directly from the respondents to say when, and how, they first intimated to the applicants that they did not intend to make any payment in respect of the compulsory acquisition of the applicants’ land. We have no indication of their reasons for taking this course. We do not know at what level the decision was taken. As we explain above, formal Answers have not yet been lodged. The only written material which we have seen, bearing on the issue, appears in a letter from Mr Hennessy to the Tribunal dated 19 November 2003. After reference to discussions with the applicants’ solicitors and conversations about dates which can be taken tacitly to refer to arrangements for a hearing in relation to time bar, Mr Hennessy wrote: “As regards the hearing itself I would not at this stage envisage leading any actual evidence. I would be relying upon the judgement in the Royal Bank of Scotland plc v Clyde District Council 1992 SLT page 356”. It may well be the case that, like Mr Hennessy, the officials involved in the decision took the view that the expiry of the six year period without an application having been made to the Tribunal was, in itself, an automatic end to the claim. His submissions opened on that basis and he expressly dealt with the material bearing on the actings of parties on an esto basis. We had understood this to mean that his prime submission was that the conduct of the parties was irrelevant. However, he did not, in terms resist the submission based on the decision in the Co-operative Wholesale Society – to which we return below – and made no attempt to challenge or qualify the import of the observations of Lord Diplock quoted therein. In answer to the Tribunal, he accepted that the acquiring authority could “waive” its rights in the sense alluded to by Lord Diplock. He argued that it had not done so.

If, as we think plain, the respondents had a right not to insist in the time bar plea, there was no reason in law why they should not have allowed Mr Syme to continue his negotiations and no reason why they should not now accept an obligation to pay the sum determined by him to be the proper measure of the applicants’ loss. Such a course would seem to be the fair way for a local authority to act in all the circumstances - unless, of course, there are some peculiarities about this case not disclosed in the limited material presently before us.

We would comment briefly on two aspects of this. Mr Hennessy suggested that the respondents could be said to be acting “fairly” because the applicants would have a claim against their surveyor if they did not recover compensation from the acquiring authority. We have some difficulty in seeing how it could be thought to be fair that a surveyor who has been acting in good faith on behalf of a member of the public in presenting a proper claim to a public authority should, himself, have to meet the obligation to pay compensation due to what, in the circumstances of this case, seems to be a pure technicality.

However, it is entirely clear that a decision as to whether the plea of time bar should be insisted in is not a matter for us. We have no broad discretion in law to allow a claim to be made out of time. Our views of proper practice by a local authority are quite beside the point. The only question for us is to decide whether, on the evidence of their actings up to the time of recall of the District Valuer’s authority, the acquiring authority can be held to have “waived” the right to insist in the plea.

We were greatly assisted by Mr Entwistle’s full analysis of this evidence. He presented arguments in support of the pleas of bar or waiver and was careful to direct our attention to certain difficulties which he saw in applying these pleas to the circumstances of this case. It was unnecessary for Mr Hennessy to do much more than echo Mr Entwistle’s material. It should be noted, however, that Mr Entwistle expressly recognised that all he required to do was establish that there was material upon which a challenge to the time bar could succeed. Recognising that there might have to be a proof if he was successful at this stage, he did not attempt to explore the finer detail of the concepts of personal bar and waiver as they had been applied in different contexts. For present purposes it is sufficient to note that he made reference to Gatty v Maclaine; Armia Ltd v Daejan Developments Ltd; and Lousada & Co Ltd v J E Lessor Properties (Limited). He also provided us with references to the Stair Memorial Encyclopedia dealing with personal bar.

His main submission was based on the decision of the English Lands Tribunal in Cooperative Wholesale Society v Chester Le Street District Council. This established that an acquiring authority would not be able to rely on a time-bar plea, if it had acted in a way which justified the conclusion that it had effectively waived the right to do so. This was consistent with the decision in Amour v Scottish Milk Marketing Board. The reasoning behind these decisions was found most clearly discussed in Kammins Ballroom Co v Zenith Investments Torquay quoted in the former case. He submitted that the decision in the Royal Bank of Scotland case was irrelevant in respect that, there, it had been conceded that the claim was time barred. No question of waiver arose. As we have noted, it was not, in the event, contended by Mr Hennessy that the acquiring authority could not agree to ignore the limitation period. The relevant question was whether, by their actings, they were to be taken to have “waived” the right.

For present purposes it is sufficient to set out the explanation given by Lord Diplock in the Kammins case which was relied on by the English Tribunal. Lord Diplock said: “Upon the purposive approach to statutory construction, this is the reason why in a statute of this character a procedural requirement imposed for the benefit or protection of one party alone is construed as subject to the implied exception that it can be ‘waived’ by the party for whose benefit it is imposed, even though the statute states the requirements in unqualified and unequivocal words. In this context ‘waived’ means that the party has chosen not to rely upon the non-compliance of the other party with the requirement, or has disentitled himself from relying upon it, either by agreeing with the other party not to do so, or because he has so conducted himself that it would not be fair to allow him to rely upon the non-compliance. This is the construction which has been uniformally applied by the courts to the unqualified and unequivocal words in statutes of limitation which prohibit the bringing of legal proceedings after the lapse of a specified time. The rule does not depend upon the precise words of prohibition which are used. They vary from statute to statute”: page 881.

We are satisfied that there is more than one potential basis for a conclusion that the acquiring authority can be taken to have waived the right to rely on a time bar. That might be sufficient to require parties to proceed to the stage of Answers and adjustment as it would be inappropriate to express any concluded view until the respondents have had an opportunity to consider the whole material. However we think it unlikely that there will be much scope for dispute about the relevant history as it appears from the various letters in the bundle. It may, accordingly, help parties consider their positions if we deal with matters more fully without prejudice to further submissions.

It seems clear that there was an agreement that the claim in respect of the first subjects and the claim in respect of the second subjects would be assessed as one with apportionment being a separate stage in the process. If the two claims were to be treated as one it is plain that only one time bar could apply. There was no explicit agreement as to which it would be but we do not think there is any basis upon which it could reasonably be suggested that the parties might, by implication, have agreed that the earlier limitation date would apply to the combined claim. The obvious inference would be that it was an implied term of the agreement to treat the claims as one, that any time limit would be the later date.

Although we think that obvious, it may be added that we are dealing with a practical piece of legislation designed for a purpose. The expectation of Parliament must have been that parties would normally resolve matters by agreement. The six year limitation would allow adequate time for such agreement in most cases. It cannot be imagined that it was designed as a trap for the unwary. We should not approach analysis of the actings of parties on the basis that a right given to an acquiring authority to allow them to reject stale claims is to have the status of a pre-eminent right. A commonsense analysis of the parties’ actings in this case leaves little room for doubt that if they had been asked, at the outset, what was to happen in the events which occurred, they would have agreed that if any limitation was needed it would be the later one.

Putting the matter another way, the agreement that the claim in relation to the first subjects was to be negotiated along with the second subjects – an agreement made for sound practical reasons, as we have seen – was on any view equivalent to an express agreement that the first claim was not to be treated as if it stood on its own. We are satisfied that this must be seen as equivalent to a waiver of any right to apply procedural limits to that claim as if it stood on its own.

We think that conclusion to be a complete answer to the time bar point but, as discussed above, the respondents must be given an opportunity to see whether the written material is to be challenged and, indeed, to consider whether there is any basis, not so far apparent, upon which this conclusion might be resisted.

Mr Entwistle put the argument on a broader basis. The letter of 18 January 1996 showed that parties had agreed a mechanism for resolution of the issue of compensation. That method did not require them to go to the Tribunal and therefore there was no need for mention of time bar. The agreement on the part of the acquiring authority was not to waive a right to take a plea of time bar but, more broadly, was to agree to the mechanism for assessment of compensation, namely, assessment by the District Valuer. It was implicit that they would not take any plea of time bar at least until that mechanism broke down. As we have seen it did not break down. We think there is force in this submission.

We do not entirely share the doubts Mr Entwistle expressed as to the limitation on the authority given to the District Valuer. What was expressed in the letter of 22 February 1990 from SRC to the District Valuer at Renfrew was that they wished the District Valuer to provide his “considered apportionment of compensation”. Communication of a “considered apportionment” could only come when the total compensation had been assessed. Whatever formal steps might then have been required before payment, it is clear that SRC was not contemplating carrying out its own negotiation. Equally, it can hardly have been contemplated that, after receipt of the “considered apportionment”, the acquiring authority was reserving a right to carry out an independent calculation of compensation. The reasonable inference was that the District Valuer was to do all that was necessary to determine an appropriate figure. If this mechanism was followed through there was to be no need for application to the Lands Tribunal. Such a need would only arise if the District Valuer’s figure was not acceptable to the applicants.

As a completely separate issue, we have also the possibility of evidence of an express agreement between the surveyor and Mr Syme that no time bar point would be taken in respect of the first claim. This appears from the exchange of letters between the applicants’ solicitors and Mr Syme. The relevant question was: “Prior to the expiry of the time bar date in relation to the Glasgow CPO on 11th March 1996, did you have any discussions with Messrs Donalds in relation to the survival of the claim beyond the time bar period?” He responded: “No discussions – I recall Mr Donald commenting during an inspection at Patterton along the lines of – ‘we don’t have to register this case at the Lands Tribunal, do we?’. My reply was something like – ‘Surely not’”. It may be said that this somewhat casual exchange is exactly what one might have expected having regard to the natural implications of the agreement that the claims be taken together, as discussed above. However, this evidence has not been a matter of admission and, if disputed, would require proof. It also raises a possible question as to the extent of the District Valuer’s authority to act on behalf of the acquiring authority. If there was no response to the surveyor’s letter of 18 January 1996 this would justify the conclusion that Mr Syme was held out as agent of SRC for ‘compensation assessment and negotiation purposes’ in relation to the first subjects. This, of course, is supported by the letter of 22 February 1990 from SRC and by the terms of his letter of 14 March 1997 referred to above.

The right to refer disputes to the Tribunal can be viewed as part of the process of assessment of compensation. If the agent authorised to deal with such matters expressly agreed that it was unnecessary to make a formal application to the Tribunal, we think this another potential basis for “waiver”.

It may be added that, in absence of any challenge as to the meaning or effect of Lord Diplock’s observations quoted above, it would be sufficient for us to say that we consider that the way in which SRC arranged for negotiations to be conducted meant that it would not have been “fair” to allow them to rely on the time bar. As the present respondents stand in their shoes that would be an end of the plea.

It is necessary to deal with Mr Hennessy’s submission based on the applicants’ delay in presenting the application to the Tribunal after the letter of March 1997. He suggested that once they realised that the respondents were to take the time bar, they should have made an immediate application. In fact there was a delay of some 18 months before any application was made. However there is only one statutory time bar in relation to any one CPO. As we have seen that was agreed to expire on 7 February 1996 or thereabout. If the acquiring authority cannot rely on the failure at that date, the right to plead that statutory limitation no longer exists. In Amour v Scottish Milk Marketing Board Lord Moncrieff said: “I am further clear that, once so waived without limitation of the waiver, the plea was gone for good and did not revive, either as from a later terminus a quo than the statutory terminus, or quoad instalments of contributions accruing due at dates later than the first contribution”: p.496. His Lordship was, of course, in the minority in his view of the facts of that particular case, but his observation on this legal point seems sound in principle and there is nothing to suggest that his colleagues disagreed with it. It is unnecessary for present purposes to consider the practical difficulties that might arise from this approach to waiver of time-bar and how such difficulties might be resolved. The point is simply that if the six year time limit goes as a result of waiver or agreement, there is no warrant for substituting a different period except by agreement of some sort. In the circumstances of this case the only possible agreed alternative date for the first CPO was, as we have seen, the later of the two scheme dates.

We have not attempted a full analysis of the issues which might arise after proof. We recognise the importance of the apparent certainty provided by statutory time limits. Although we think it wrong to give them any pre-eminent status, they are not lightly to be disregarded. However, in summary, we think that the respondents ought now to consider in light of the material discussed above and, of course, any other relevant material known to them, whether it is proper to continue to take a time bar point in this case. In any event, we are satisfied that the material available to us, if formally admitted or established in evidence, would justify a conclusion that the acquiring authority waived the right to treat the claim in respect of the first CPO as a “stand alone” claim and, therefore, implicitly waived the time bar plea applying to it alone. It is unnecessary at this stage to express a view on the possible bases of waiver discussed above.

It was recognised at the outset that the decision in this case would be likely to have an important bearing on the outcome of an action in the Sheriff Court at the instance of Messrs Donalds (hereinafter the “surveyor”) against the present applicants. If the claim is time barred the applicants may have a good claim against their surveyor. Both solicitors made reference to the position of the surveyor as disclosed in his memoranda and, separately, in the pleadings on his behalf in the Sheriff Court action. There are apparent inconsistencies between the two. It is plain that the applicants do not accept all the surveyor’s assertions as accurate and we understand the difficulty of Mr Entwistle in knowing which basis of fact he could properly adopt at this stage in the present case. However, we have been able to take a view based on contemporaneous written material. The letter of 18 January 1996 shows, on the face of it, that the duly authorised agent of the applicants was acting at that time in reliance on the two claims being taken together. It does not appear to us to be of any moment whether he had in fact given express thought to the time limit or to any statutory procedures which might have had to be followed if the first claim was to be run on its own. As he was proceeding on the basis of an agreement to negotiate the two claims as one, he would have been justified in thinking that these questions simply did not arise. Whatever he did or did not say to his own clients, that mind-set might explain why he did not press the point to the extent of seeking any formal assurance from the respondents. We do not think that the possibility of recovery from the surveyor has any bearing on the issues of waiver.

We shall continue the cause for four weeks to allow the respondents to consider their position. If necessary we shall make a formal Order for Answers and for a period of adjustment before fixing any necessary diet for a preliminary proof. It would seem that any further procedures would be limited to the question of time bar but, of course, other issues may be raised by formal Answers and the nature of any further hearing can be determined at a later stage.