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Introduction to Administrative Law

Introduction to Administrative Law

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Published by: intcomlaw on May 15, 2009
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The law prescribes various rules or tests for the limits of substantive powers. In
general, these rules are applicable according to whether or not the powers are
discretionary and whether matters of fact or law are in issue. However, before
these rules are examined, it must be re-emphasised very strongly that merely
because the reviewing court considers a decision to be wrong on the merits, ie
matters within the limits of statutory powers, does not render it ultra vires. The
law recognises here that an administrative agency should have some opportu-
nity to exercise its expert skill or judgment in particular cases. Hypothetically, a
furnished rent tribunal might have the power ‘... to determine disputes between
landlord and tenant in respect of the payment of rent for furnished premises’. If
the tribunal is to avoid an ultra viresdecision it would probably have to decide
correctly at the outset and to the satisfaction of a reviewing court that a case
referred to it involved what is in fact a dispute on what in law is a rent payment
as between parties who are in law landlord and tenant concerning premises
which are, as a fact, furnished premises (R v Fulham, Hammersmith and
Kensington Rent Tribunal, ex p Zerek(1951)). Thereafter, any expert conclusions
arrived at by the tribunal about the physical condition of the premises and that,
for example, the rent should be reduced by 10% in recognition of those condi-
tions is a decision on the merits of the case and therefore generally beyond
review for ultra vires. However, if Parliament had prescribed an appeal from the
tribunal’s decisions, the appeal court or tribunal would be able to re-examine
the merits of the tribunal’s decision in order to substitute its own decision, eg by
reducing the rent by 20%. Accordingly, there is a fundamental distinction
between review, which is concerned to ascertain whether a decision should be
quashed or declared a nullity as being in excess or abuse of statutory limits, and
appeal.

The need for any administrative tribunal or agency to determine correctly
the limits of its powers is well illustrated in R v Blackpool Rent Tribunal, ex p
Ashton(1948), where the tribunal had statutory responsibility for determining
disputes in relation to furnished premises. The tenancy of a flat was referred to
the tribunal where the flat contained a clock, curtains in two rooms, a gas
cooker and a water heater. The court quashed the tribunal’s decision: the first
two items were regarded by the court as being de minimiswhile the other items
were not ‘furniture’. The fact that certain matters have nothing to do with the
limits of statutory powers but relate entirely to the merits of a case, to be

179

SUBSTANTIVEULTRAVIRES

weighed and dealt with entirely by the agency itself, is seen in Dowty, Boulton
Paul Ltd v Wolverhampton Corporation (No 2)(1973).The corporation decided to
discontinue the provision of its municipal airport by virtue of the powers in s
163 of the Local Government Act 1933 which stipulated that ‘... a council may
appropriate for any purpose for which the council are authorised ... to acquire
land ... any land which belongs to the council and is no longer required for the
purpose for which it is held immediately before the appropriation’. It was found
by the court that a decision of the corporation under these powers by which the
land’s use could be discontinued in order to permit the building of houses was
entirely a matter within their powers, that is, a matter for their judgment on the
merits of the competing claims to the land. Even if the court sympathised with
the merits of the airport user’s claim, this could not have rendered the corpora-
tion’s decision ultra vires.

The fundamental distinction between on the one hand, the merits of an
administrative decision, which is not a matter which is appropriate for the
supervisory jurisdiction of the courts, and on the other, the legality of that same
decision which is, was highlighted in Save Britain’s Heritage v Secretary of State for
the Environment(1991) referred to in Chapters 3 and 9. The developers’ propos-
als to demolish listed and unlisted buildings in a conservation area and build in
their place a modern building designed by a leading architect had aroused
much public controversy. Indeed, the local planning authority, English Heritage
and non-statutory organisations such as Save Britain’s Heritage were all
opposed to the scheme. However, the House of Lords made it abundantly clear
that aesthetic judgments were for the Secretary of State to make, not the court.
Accordingly, the issue for the court was whether or not the Secretary of State
had complied with the statutory requirement to give reasons for his decision to
approve the scheme. Lord Bridge, echoing earlier judicial sentiments, stated that
the concern of the court in the context of judicial review proceedings ‘is solely
with the legality of the decision-making process, not at all with the merits of the
decision’.

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