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Introduction to Administrative Law

Introduction to Administrative Law

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Closely related to the above requirements relating to relevant considerations is
the requirement that a statutory power can be used only for the purposes
expressly or impliedly indicated in the legislation. In many instances it may be
the case that a decision or other administrative action may be ultra viresby refer-
ence to either of these legal requirements. Indeed, on those occasions when a
decision is quashed as being ultra viresby reference to improper purposes, the
likelihood is that the administrative agency has either taken account of irrele-
vant considerations or failed to take into account relevant considerations.

A further, final example of a case in which the issue of relevant considera-
tions was central to the decision of the court is R v Secretary of State for the Home
Department, ex p Asif Khan(1985). In this case, the Secretary of State had issued a
circular in which he had set out the criteria that would be applied in relation to
the admission of children into the UK for adoption. The applicant complied
with the published criteria but nevertheless the Secretary of State refused to
admit a relative’s child that he wished to adopt on the basis of a ground that
was not present in the published criteria. Accordingly on an application for
judicial review, the court of Appeal quashed the refusal of entry clearance. The
circular had created a legitimate expectation that entry would be allowed pro-
vided that the criteria were complied with. The Secretary of State had in effect

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made his own rules by stating those matters which were relevant to his deci-
sion, but the fact that he had decided the matter on the basis of a consideration
not stated in the circular, an irrelevant consideration, ensured that in the opin-
ion of the court, he had ‘misdirected himself as to his own criteria and acted
unreasonably’.

Whether a statutory power has been used lawfully for the express or implied
requirements or purposes of the particular legislation is again a matter of statu-
tory interpretation for the court. In Sydney Municipal Council v Campbell(1925)
the council was empowered to purchase compulsorily any land required for
‘carrying out improvements in or remodelling any portion of the city’. Without
any proposal or intention to improve or remodel any area, the council resolved
to purchase land, including land in the ownership of the respondent. It was
found that the council’s intention was to obtain the benefit of an increase in land
values following a highway extension into the area, a proposal which was not
related, directly or indirectly, to the objects and purposes of the statutory pow-
ers. Similarly in Webb v Minister of Housing and Local Government(1965) it was
decided that a power to acquire land for the provision of coast protection could
not lawfully be used for the purpose of providing a promenade. However, in
Hanks v Minister of Housing and Local Government(1963) it was decided that gen-
eral highway and planning purposes were lawfully incidental to the prime pur-
pose of powers in the Housing Act by which land can be acquired for the
provision of housing and, more particularly in this case, a housing estate.
Where the purposes for which statutory powers are conferred are not clearly
and expressly indicated, the court will look to the overall policy and objects of
the relevant Act or section of the Act (Padfield v Minister of Agriculture(1968)).
Section 120(1) of the Local Government Act 1972 states that:

(1) For the purposes of –

...

(b)the benefit, improvement or development of their area, a principal coun-
cil may acquire by agreement any land, whether situated inside or out-
side their area.

It was decided in Costello v Dacorum District Council(1983) that these powers are
widely drawn. As a result the council was found not to have used these and
other powers under the Open Spaces Act 1906 for an unlawful, improper pur-
pose when a lease was taken of land in order to enable the eviction of gipsies.
This was despite a temporary planning permission given to the Secretary of
State for the Environment under the Town and Country Planning Act enabling
the gipsies to stay on the land. However, in R v Somerset County Council, ex p
Fewings(1995), the principal issue for the court was whether the councillors
moral objections to the practice of stag-hunting were capable of justifying the
prohibition of hunting on land that they owned as a measure achieving the pur-
pose of s 120 of the 1972 Act. The Divisional Court held that the council’s reso-
lution to ban stag-hunting was ultra viressince it amounted to the use of its

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statutory powers for an improper purpose as well as the taking of irrelevant
considerations into account, namely the ethical perceptions of the councillors as
to the rights and wrongs of hunting.

Where there appears to be a plurality of motives for administrative action
the court will seek to identify the dominant purpose for which the powers are
exercised. In Westminster Corporation v London and North Western Railway Co
(1905) the court was concerned with a statutory provision which stated that:
‘Every sanitary authority may provide and maintain public lavatories ... in situ-
ations where they deem the same to be required.’ The corporation used this
power to build lavatories underneath the middle of a street and provided access
by means of a subway from either side. Consequently, the subway could be
used as a means of crossing the street by persons with no desire to use the lava-
tories. It was argued that the corporation had unlawfully abused its powers.
This argument was rejected by the court and in delivering judgment, Lord
MacNaughton observed that:

It is not enough to show that the Corporation contemplated that the public
might use the subway as a means of crossing the street ... it must be shown
that the Corporation constructed this subway as a means of crossing the
street under colour and pretence of providing public conveniences which
were not really wanted at that particular place.

It seems, therefore, that as long as the corporation considered that the lavatories
were genuinely required at the point in question, it mattered not that some con-
sideration may have been given to the need to provide a subway street crossing.

It is sometimes the case that an administrative agency is confronted by a
number of different courses of action, any one of which could be adopted for
the purpose of dealing with a particular problem. This was the case in Asher v
Secretary of State for the Environment(1974) where local councillors refused to
increase council house rents, as required by the Housing Finance Act 1972. The
Secretary of State had four possible alternative options in order to deal with this
situation. He could appoint a Housing Commissioner to take over the council’s
statutory housing responsibilities, require the district auditor to undertake an
extraordinary audit of the council’s accounts, reduce the council’s housing sub-
sidy, or apply to the High Court for an order of mandamusrequiring the council
to undertake its statutory housing responsibilities according to law. The
Secretary of State chose an extraordinary audit of the accounts as a result of
which the councillors were surcharged and disqualified. The court rejected an
argument that the Secretary of State was motivated by an unlawful, improper
motive, to see the councillors punished. It was emphasised that ministers fre-
quently have to balance one course of action against another and in the absence
of any proof of bad faith the court would not interfere. The court did interfere in
Wheeler v Leicester City Council(1985) when the council purported to use its
statutory powers to ban the use of a public park for practice by Leicester Rugby
Football Club. The ban occurred after the club refused to condemn a rugby tour

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to South Africa in which members of the club would participate. In essence the
House of Lords decided that the powers could not be used to punish the club
when it had done no wrong. Similarly, in R v Lewisham London Borough Council,
ex p Shell UK Ltd(1988), the court upheld an application for judicial review of a
decision by the council to boycott the company’s products due to its links with
South Africa. Whilst the council was entitled to take into account the need to
promote good race relations in the exercise of its functions, its attempt to induce
Shell to sever its trading links with South Africa amounted to the exercise of a
power for an improper purpose.

Finally, where statutory powers overlap so that it may be apparent that
either power may be used by an administrative agency, it may be unlawful to
use one power to the exclusion of the other, particularly if a person’s rights are
affected as may have been the case in Costello. However, statute may prescribe
that the administrative agency may lawfully use particular powers, even though
a person’s rights may be prejudiced by the use of these but not the other over-
lapping powers. This was the case in Westminster Bank Ltd v Minister of Housing
and Local Government(1970) where proposed development involving an exten-
sion to a bank could be restrained either by refusing planning permission under
the Town and Country Planning Act or by imposing an ‘improvement’ line
under the Highways Act. The latter powers involved a payment of compensa-
tion whereas a refusal of consent under the Planning Act powers did not attract
compensation. It was decided by the House of Lords that in refusing consent
under the planning powers, there had been no ultra viresdecision motivated by
any unlawful desire to avoid compensation primarily because the Town and
Country Planning Act expressly permitted other powers to be ignored. The sec-
tion in question stipulates that:

... the provisions of this Act ... apply ... in relation to any land notwithstand-
ing that provision is made by any enactment in force at the passing of the
Act ... for statutory ‘immunity’ in relation to improper purposes only extends
to ‘competing’ powers in an Act in force at the passing of the Town and
Country Planning Act where the authority is concerned with the ‘regulation’
of any development of land.

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