P ART 3: J UDICIAL R EVIEW , U LTRA V IRES AND N ATURAL
12.2 Administrative Remedies and the Question of
At the beginning of this chapter it was seen that where any challenge to a deci- sion or other action is through an administrative remedy such as an appeal, there can be a complete re-examination of the decision. In other words, all the intra vires merits of the decision can be re-appraised and, if necessary, the appeal body can substitute its own decision for that made originally and which has now been brought to appeal. However, when the original decision is made by the administrative agency it may be suspected, on the basis of legal advice, that the legality of the decision is in doubt. It may be suspected, for example, that the decision is, in fact, ultra vires. For the individual who is affected by the decision there may be something of a dilemma. The decision may be made in respect of that activity from which he proposes to earn his livelihood. The licensing authority may have granted a licence by its decision but imposed per- haps onerous conditions. Should the individual pursue an administrative appeal in the hope that the onerous conditions might be lifted, or should he attempt to challenge the legality of the decision as a whole by applying to the High Court for one of the judicial remedies in administrative law? If the latter course is possible and the High Court found that the decision was ultra vires, that decision would probably be quashed or declared a nullity, so enabling the indi- vidual to start all over again with a fresh application to the licensing authority.
12.2.1 Administrative versus judicial remedies
For the individual faced with the dilemma described above there is the vital question of whether, in law, it is possible to go for the judicial remedy in the High Court where there is an administrative remedy already provided. The answer to this question emerges from the decision in R v Hillingdon London Borough Council, ex p Royco Homes Ltd (1974) where the administrative remedy
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was the appeal to the Secretary of State for the Environment against a condi- tional grant of planning permission by a local planning authority while the judi- cial remedy was an order of certiorarifrom the High Court to quash the decision by reference to ultra vires conditions. The crucial point was whether certiorari was available or whether the High Court would have to admit that the only remedy was the administrative remedy provided in this case by the Town and Country Planning Act. The Act provides that the applicant who is aggrieved by the decision of a local planning authority on an application for planning permis- sion ‘... may by notice ... appeal to the Secretary of State’. On the face of it, the word ‘may’ seems to indicate that there is an option so that the aggrieved appli- cant does not necessarily have to take that route. It was decided by the High Court that the judicial remedy, ie in this case, the order of certiorari, would be available in a ‘proper’ case, where the only issue (as in this case) is the legality of a decision. Consequently, in any case where the only complaint about a deci- sion is its legality, eg where there is an error of law on the face of the record, the administrative remedy can be ignored in favour of the judicial remedy from the High Court. The then Lord Chief Justice, Lord Widgery, giving judgment sum- marised the position by saying that:
Whether the issue between [the parties] is a matter of law or fact, or policy or opinion, or a combination of some or all of those, one hearing before the Secretary of State has jurisdiction to deal with them all, whereas of course an application for certiorariis limited to cases where the issue is a matter of law ...
12.2.2 Administrative and judicial remedies serving the same purpose
It has been seen in the previous section that the two types of remedy available may not necessarily serve the same purpose although there would have been no objection to an appeal to the Secretary of State by Royco Homes under s 36.
Indeed an administrative appeal is likely to be the cheaper option unless the parties become embroiled in an expensive public inquiry into the issues before the final decision is made. Had Royco Homes appealed against the conditions attached to its planning permission, a finding by the Secretary of State that they were ultra vireswould not have necessitated a dismissal of the appeal in view of the fact that the Secretary of State can look at the application afresh and substi- tute his own decision (Robert Hitchens (Builders) Ltd v Secretary of State for the Environment (1979)). In another case from the background of town and country planning, Pyx Granite Co Ltd v Minister of Housing and Local Government (1959), the company sought a declaration (one of the judicial remedies to be described in the next chapter) that their quarrying operations could be carried out without planning permission because they were authorised by a ‘private Act of Parliament’ (the Malvern Hills Act 1924) for the purposes of a statutory order made under the Town and Country Planning Act. It was decided by the House of Lords that it could grant the declaration sought. One member observed that:
‘It is surely proper that in a case like this involving ... difficult questions of con- struction of Acts of Parliament, a court of law should declare what are the rights of the subject who claims to have them determined’ (Viscount Simonds). In this case, the court’s declaration served the same purpose as the administrative rem- edy. This remedy, provided for in what is now s 64 of the Town and Country Planning Act 1990, provides than any person who wishes to ascertain whether proposed activities on land amount to ‘development’ requiring planning per- mission ‘... may ... apply to the local planning authority to determine that ques- tion’. In other cases where there is no overlap so that the respective remedies serve different purposes the court will require that the administrative or any other exclusive statutory remedy be followed, as in Barraclough v Brown (1897), which was distinguished by the House of Lords as a different case in Pyx Granite.
In Barraclough the court was concerned with the statutory facilities which gave the plaintiff an entitlement to claim his expenses arising from the recovery of sunken vessels from the River Ouse. Such expenses were recoverable from a magistrates’ court: this remedy, it was decided, was an exclusive remedy so that the plaintiff could not obtain a declaration from the High Court in respect of the validity of a claim, which was a matter entirely for the magistrates.
12.2.3 Exclusive administrative remedies
In the previous chapter reference was made to s 8 of the Education Act 1944 by which a local education authority is obliged ‘... to secure that there should be available for their area sufficient schools for providing full-time education’ suit- able to the requirements of pupils. The statutory definition of such broad duties is not uncommon: s 11 of the Water Act 1973 declared very broadly that: ‘It shall be the duty of a water authority to supply water within their area.’ This broad duty is now repeated in similar terms by the Water Industry Act 1991 in the case of the privatised water companies. However, any alleged failure of an administrative agency to undertake such a duty cannot be dealt with by means of a judicial remedy such as mandamus, which would direct that a statutory duty should be performed according to law. In many cases Parliament and the courts have foreseen that these very broad duties depend for their performance on all sorts of financial, economic and other variables. The Water Act 1989, for exam- ple, contained many duties which are enforceable by the Director General of Water Services and the Secretary of State through the service of provisional or final enforcement orders. As a consequence, the courts have decided that such duties (now consolidated in the Water Industry Act 1991) are not legally enforceable directly, a conclusion which is often fortified by statutory provi- sions which provide an alternative, exclusive remedy for those occasions when there is a failure to perform the duty or, to use a technical legal expression, a
‘non-feasance’. Such a remedy is necessarily associated with default powers exercisable by various ministers in central government departments as illus- trated in a section of Chapter 4 dealing with this type of central government
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control. One example mentioned in this section came from the Education Act 1944, s 99 of which states that:
If [the Secretary of State] is satisfied, either upon complaint by any person interested or otherwise, that any local education authority ... have failed to discharge any duty imposed upon them by or for the purposes of this Act [the Secretary of State] may make an order declaring the authority ... to be in default in respect of that duty, and giving such directions for the purpose of enforcing the execution thereof as appear ... to be expedient; and any such directions shall be enforceable, on an application made on behalf of [the Secretary of State], by mandamus.
It will be seen from this provision that only at the end of the special procedure is there any possibility of enforcement by the law, but only through the Secretary of State’s application for an order of mandamus where any directions have not been complied with.