R v Secretary of State for the Environment, ex parte Ostler (pet dis)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GOFF,LORD JUSTICE SHAW |
| Judgment Date | 16 March 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0316-2 |
| Date | 16 March 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0316-2
The Master of the Rolls
(Lord DenningJ
Lord Justice Goff and
Lord Justice Shaw
In The Supreme Court of Judicature
Court of Appeal
Civil Division
(Interlocutory List)
Appeal from Order of Divisional Court
MR. H.K. WOOLF (instructed by The Treasury Solicitor) appeared on behalf of the Appellant.
MR. B.A. PAYTON and MR. C. MAGILL (instructed by Messrs Eland, Hore Patersons) appeared on behalf of the Respondent.
We are here presented with a nice question. Is Smith v. East Elice Rural District Council, 1956 Appeal Cases, page 736, a good authority? -or, Has it been overruled by Anisminic v. Foreign Compensation Commission, 1969 2 Appeal Cases, page 147?
Boston is an old port. It has a fine church, with its famous tower - the Boston Stump. The centre of the town has, however, in modern times become so congested with traffic that it has been necessary to make an inner relief road. The plan was launched as far hack as 1965, but it was not till 1972 that the local authority took steps to acquire land compulsorily. It was to be done in two stages. First, to acquire the land needed for the trunk road itself. Second, to acquire the land needed for the side roads giving access to the trunk road. In respect of each stage there was a public inquiry to consider objections.
The first inquiry (as to the trunk road itself) was held in September 1973. A firm of wine merchants called Bateman lodged objection on the ground that it would cut off the access to their yards. Now, in order to overcome that objection it is alleged that a secret assurance was given to Batemans by an officer of the Department of the Environment. Batemans were assured that at the second stage access would be given for the lorries by means of a lane called Craythorne Lane. This was a narrow lane leading out of the market place. Batemans were assured that at the second stage this lane would be widened so as to take their lorries. On getting that assurance, Batemans withdrew their objection at the first inquiry. That was a secret assurance, not known to the public at large.
Now, there was another trader, MR. Ostler, who was interested. He was a corn merchant. His premises were at a comer of the Market Place where Craythorne Lane led out of it. He had no idea that Craythorne Lane was going to he widened. If it was to remain a narrow lane (as he thought) his business would not be affected by the proposed road. So he did not lodge any objection to it.
The inquiry was held on the 11th and 12th September, 1973. The proposed new road was approved. It was followed by an order dated 28th March, 1974- under the Highways Act, 1959, for the stopping up of highways and constructing new ones: and an order dated 9th May, 1974 for the compulsory purchase of property needed in order to construct the proposed new road.
Now MR. Ostler makes this point. He did not know of the secret agreement with Batemans. If he had, he would have lodged objection at the first stage. But not knowing of it, he made no opposition. So the orders were made in his absence.
Now we come to the next item. In July 1974- the local authority made a supplementary order under which they proposed to widen Craythorne Lane itself. Now MR. Ostler did object to this. He thought that the widening of Craythorne Lane would injuriously affect his premises and his business: because they were at the corner of Craythorne Lane.
This second stage was the subject of another inquiry. It was held in December 1974 for four days. MR. 0stler instructed solicitors to object on his behalf. He gave evidence. He sought to refer to the past history. In particular he wanted to say that he would have objected at the first stage if he had known that the whole project would affect his property. But he was net allowed to go into it. TheInspector said: "MR. Ostler, I can't allow that evidence. We are here to discuss the Craythorne Lane scheme only". So his evidence was excluded on that point. The Inspector made his report, recommending the widening of Oraythorne Lane. The Minister confirmed the Order in July 1975.
Two or three months later MR. Ostler got to know of the secret agreement with Batemans which had been made before the first inquiry. So in December 1975 he applied to the Divisional Court to quash, not the latest order in July 1975 about Oraythorne Lane, but the earlier orders about the line of the trunk road and the acquisitions in consequence of it. He said that they were invalid. His case is that there was a want of natural justice and, further, that there was a want of good faith because of the secret agreement.
The Divisional Court thought that the authority of Smith v. East Elloe might have been shaken by the Anisminic case. So they thought that there should be further evidence before them, such as evidence about the secret agreement and evidence as to whether or no there had been any lack of good faith or any want of natural justice. The Department feel that this taking of evidence would involve delay and hold up the work. So MR. Wolf has come to this Court by way of appeal.
The earlier orders were made in March and May 1974 Much work has been done in pursuance of them- We are told that 80 per cent of the land has been acquired and 90 percent of the buildings demolished. Nevertheless, MR. Ostler seeks to say that now, nearly two years later, those orders should be upset and declared to be null and void or set aside.
Wow it is quite clear that if MR. Ostler had come within six weeks, his complaint could and would have been considered by the Court. The relevant provision is containedin the Second Schedule of the Highways Act, 1959. It says: "If a person aggrieved by a scheme or order to which this Schedule applies desires to question the validity thereof, or of any provision contained therein, on the ground that it is not within the powers of this Act or on the ground that any requirement of this Act or of regulations made thereunder has not been complied with in relation thereto, he may, within six weeks from the date on which the notice required by the fore going paragraph is first published, make an application for the purpose to the High Court".
That is a familiar clause which appears in many statutes or schedules to them. Although the words appear to restrict the clause to cases of ultra vires or non-compliance with regulations, nevertheless the Courts have interpreted them so as to cover cases of bad faith. On this point the view of Lord Radcliffe has been accepted (which he expressed in Smith v. East Elloe, 1956 A.C. at page 769)- In addition this Court has held that under this clause a person aggrieved - who comes within six weeks - can upset a scheme or order if the Minister has taken into account considerations which he ought not to have done., or has failed to take into account considerations which he ought to have done, or has come to his decision without any evidence to support it, or has made a decision which no reasonable person could make. It was so held in the Ashbridge case, 1965 1 W.L.R, 1370, and the Minister did not dispute it. It has been repeatedly followed in this Court ever since and never disputed by any Minister. So it is the accepted interpretation. But the person aggrieved must come within six weeks. That time limit has always been applied.
That paragraph is succeeded by the following one,which is complementary to it: "Subject to the provisions of the last foregoing paragraph, a scheme or order to which this Schedule applies shall not, either before or after it has been made or confirmed, be questioned in any legal proceedings whatever, and shall become operative on the date on which the notice required by paragraph 1 of this Schedule is first published, or on such later date, if any, as may be specified in the scheme or order".
So those are the strong words, "shall not be questioned in any legal proceedings whatever". They were considered by the House of Lords in Smith v. East Elloe, 1956 A.C, 751. A lady brought an action to set aside an order for compulsory purchase. The six weeks had long since expired. She said the order was induced by the fraud of the clerk to the local council. The majority of the House held that her claim should be struck out against the council, but they allowed it to go on as against the clerk. MR. Payton told us that afterwards she even failed to prove any fraud against the clerk. So the decision of the House itself was based on a hypothesis which turned out to be unfounded - just like Donoghue v. Stevenson But even so it is a decision that the paragraph does bar an action to quash an order for compulsory purchase even though it is put on the- ground of fraud - if it is brought after the six weeks.
Thirteen years later the House had to consider the Anisminic case, 1969 2 Appeal Cases, 147. It was on a very different provision. The Foreign Compensation Act, 1950 said that "The determination by the commission of any application made to them under this Act shall not be called in question in any court of law". The House held that that clause only applied to a real determination. It did not apply to apurported determination. They held that there had been no determination properly so called by the Commission. So their decision could be called in question.
Some of their Lordships seem to have thrown doubt on Smith v. East Elloe. See what Lord Reid said at page 170-171. But others thought it could be explained on the ground on which MR. Justice Browne explained it. Lord Pearce said: "I agree with MR. Justice Browne that it is not a compelling authority in the present case"; and Lord Wilberforce said: "After the admirable analysis of the authorities made by MR. Justice Browne no elaborate discussion of...
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The Attorney General of Trinidad and Tobago v Thomas
...was affirmed by the House of Lords [[1956] A.C. 736] and followed in R. v. Secretary of State for the Environment, ex parte Ostler, [1976] 3 All E.R. 90. In the latter case Smith v. East Elloe Rural District Council ( supra) was clearly distinguished from the Anisminiccase ( supra) by all......
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Time Limitations on Applications for Judicial Review
...& Madgwick JJ). 44 Smith v East Elloe Rural District Council [1956] AC 736; R v Secretary of State for the Environment; Ex parte Ostler [1977] 1 QB 122 (CA). English cases in which the interpretation in Ostler was followed are listed in HWR Wade and CF Forsyth, Administrative Law (8th ed, 2......
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Time Limitations on Applications for Judicial Review
...& Madgwick JJ). 44 Smith v East Elloe Rural District Council [1956] AC 736; R v Secretary of State for the Environment; Ex parte Ostler [1977] 1 QB 122 (CA). English cases in which the interpretation in Ostler was followed are listed in HWR Wade and CF Forsyth, Administrative Law (8th ed, 2......