Aylesbury Vale District Council, R (On the Application Of) v Call A Cab Ltd

A procedural requirement in a statute does not necessarily invalidate an administrative act whenever there has been non-compliance. The court must construe the statute as a whole and determine Parliament’s intended consequence. Even where the requirement is expressed in mandatory terms, substantial compliance may suffice. A failure to notify some, but not all, affected bodies does not inevitably establish invalidity. The decision-maker must assess whether there has been substantial compliance in the circumstances. On a case stated appeal, the reviewing court asks whether the lower court’s conclusion was irrational, not whether it would have reached the same factual conclusion.

This was a case stated appeal from the decision of District Judge Pattinson at Aylesbury Magistrates Court. The District Judge had acquitted the defendants of charges under section 46 of the Local Government Miscellaneous Provisions Act 1976, after finding that the statutory notification requirements preceding a licensing resolution had not been satisfied.

The appeal concerned whether there was sufficient evidence for that conclusion and whether the failure to notify 12 of 112 parish councils automatically invalidated the resolution. The central issues were the appropriate standard of review, the effect of non-compliance with section 45(3)(b), and whether the matter should be remitted.

1. The answer to the first question was yes. On a case stated appeal, the issue was whether the District Judge’s conclusion was irrational. The District Judge was entitled to infer from the detailed parish minutes that receipt of the statutory notices would ordinarily have been recorded. The Council had produced no specific evidence that the notices had been served. The District Judge’s conclusion was therefore one he was entitled to reach.

2. The answer to the second question was no. The effect of non-compliance with a statutory procedural requirement depends primarily on the construction of the statute as a whole and the intention of Parliament as to the consequences of non-compliance. Although section 45(3) made notification to each parish council a mandatory requirement, the statutory scheme did not make every failure automatically fatal. Substantial compliance could preserve the validity of the resolution.

3. The failure to notify 12 of 112 parish councils did not by itself establish that there had been no substantial compliance. The District Judge had treated the identified failures as conclusive and had not determined the substantial-compliance issue. The matter was therefore remitted for consideration of the effectiveness and meaning of the resolution, whether there had been substantial compliance, including any proper inference concerning the remaining councils, and the operator issue.

4. The remitted hearing was initially to proceed on further submissions without additional evidence. Following the hearing, the court varied that direction because fresh material might undermine the finding that the second defendant had presented all evidence within his power. Evidence relevant to that issue could be adduced, but not to reopen the factual answer to the first question.

5. Lord Justice Treacy added that raising the validity issue without advance notice was tantamount to an ambush and contrary to good practice. The court ordered the first defendant to pay costs assessed at £15,000 inclusive of VAT and declined to certify a point of general public importance.

• Aylesbury Magistrates Court: District Judge Pattinson acquitted both defendants on 8 March 2013 after finding, on the balance of probabilities, that the notification requirements had not been satisfied.
• High Court (Administrative Court): The case stated questions were answered yes and no respectively. The matter was remitted to the District Judge for further consideration.