R v Somerset County Council, ex parte Fewings

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date17 March 1995
Judgment citation (vLex)[1995] EWCA Civ J0317-1
Date17 March 1995
Docket NumberQB94/0334/D

[1995] EWCA Civ J0317-1





(Mr. Justice Laws)

Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Simon Brown Lord Justice Swinton Thomas


In the Matter of an Application for Judicial Review

Somerset County Council
Ex Parte Fewings, Leyland & Down

THE HONOURABLE MICHAEL J. BELOFF QC & MR. D HOLGATE (Instructed by Messrs. Knights, Tunbridge Wells) appeared on behalf of the Respondent

MR. M SUPPERSTONE QC & MR. P SALES (Instructed by Messrs. Sharpe Pritchard, London, WC1 agents for J.K. WHITCOTT County Solicitor Taunton) appeared on behalf of the Appellant Somerset County Council


Friday 17 March 1995


THE MASTER OF THE ROLLSThe parties to this appeal are, on one side, the Somerset County Council and, on the other, representatives of the Quantock Staghounds ("the Hunt"). The issue which divides them is whether the county council acted lawfully when it resolved, on 4 August 1993, that


"This Council, as landowners, with immediate effect, resolves to ban the hunting of deer with hounds on the County Council owned land at Over Stowey Customs Common".


The Hunt say that the resolution was unlawful, because based on considerations which members of the county council were not permitted to take into account. Laws J agreed with them, and accordingly quashed the county council's decision. The county council say that the decision was lawful and that the judge erred in holding otherwise. That is the issue now before us.


The facts are clearly set out by the judge in his judgment (see [1995] 1 All E.R. 513), to which reference should be made for a full account of the background. I confine myself to a summary of the bare facts necessary to show how the issue arises.


In 1921 the county council acquired land known as the Quantock Lodge Estate. Most of this land was thereafter let by the county council on a long lease to the Forestry Commission. Under this lease the Commission enjoyed the right to permit or prohibit the hunting of deer, and it has permitted this land to be used for that purpose. Some of the land was farmland, let to tenant farmers: sporting rights over this land were reserved to the county council, which has in practice left the decision whether to permit hunting on their land to the tenant farmers, who have chosen to do so. Part of the land acquired by the county council was Over Stowey Customs Common ("the common"), the land which is (alone) the subject of these proceedings. The common is a long, thin strip of land, about 148 acres in area, which almost bisects the territory over which red deer have for many years been hunted by staghounds. It forms a very small proportion of this territory, but the evidence suggests that the common is so placed as seriously to impede the conduct of the hunt if use of this land is forbidden. The common is part of a larger area designated by the Countryside Commission as an area of outstanding natural beauty under section 87 of the National Parks and Access to the Countryside Act 1949.


In 1974 the common was appropriated to the planning and transportation committee of the county council for amenity purposes, and in more recent times the environment committee of the county council has succeeded to the role of the planning and transportation committee.


On 2 April 1986 the planning and transportation committee considered whether deer hunting on the common should be banned. Papers before the committee rehearsed arguments for and against a ban. The committee resolved that it would not at that stage exercise its right to ban hunting on the common, but would await the outcome of a deer survey and agreement of a common land management plan. The management plan was prepared. In 1992 and 1993 a study and a working party report were commissioned by the National Trust, and these prompted a report to the Quantock Hills joint liaison group (a local body on which local authorities and the Countryside Commission were represented). This report was directed to the issue whether hunting should continue to be permitted on the common. The group concluded by a majority that it should. This report was also before the environment committee of the county council on 7 July 1993 when the committee resolved to recommend the county council to continue to permit hunting.


When the county council met on 4 August 1993 this recommendation was before it. But the leader of the council moved, as an amendment, the motion quoted at the outset of this judgment, which was carried by a majority of 26 to 22. This decision followed a debate lasting some 1 1/2 hours, said to have been of a very high quality. Although we have only an impressionistic note of the debate, the drift of the argument is clear. Some speakers urged, at times using strong and emotive language, that hunting deer with hounds involved an unacceptable degree of cruelty, which they and others found offensive and which they felt the county council should not permit on its land. Others argued that hunting was a more humane way of controlling the size of the herd than any other, and that it was only the existence of the hunt which preserved the deer from piecemeal and often cruel destruction by local farmers. Reference was made to alternative means of culling deer, and dispatching accidental casualties, if hunting were not permitted. It is common ground on this appeal (and the judge held) that the majority who supported the ban were moved to do so by their belief that hunting involved unacceptable and unnecessary cruelty to the red deer who were the victims of the chase. I shall hereafter refer to this, for convenience, as "the cruelty argument."


It appears from the note that in his opening remarks the leader of the county council referred to its clear right to control its own land. His motion made reference to the county council "as landowners". After the meeting of the county council, in answer to a complaint by the Quantock deer management and conservation group that it had not been consulted, the council replied:


"…it is for every landholder to decide (within the general framework of the law) what activities he or she wishes to allow on his [or her] land. In this case the County Council took the view that it did not wish to allow deer hunting on this piece of land."




The judge was at pains to emphasise (at pages 515d to 516b of his judgment) what these proceedings are not about. This is so important that I must repeat it.


The point is often made that unelected unrepresentative judges have no business to be deciding questions of potentially far-reaching social concern which are more properly the preserve of elected representatives at national or local level. In some cases the making of such decisions may be inescapable, but in general the point is well made. In the present case it certainly is. The court has no role whatever as an arbiter between those who condemn hunting as barbaric and cruel and those who support it as a traditional country sport more humane in its treatment of deer or foxes (as the case may be) than other methods of destruction such as shooting, snaring, poisoning or trapping. This is of course a question on which most people hold views one way or the other. But our personal views are wholly irrelevant to the drier and more technical question which the court is obliged to answer. That is whether the county council acted lawfully in making the decision it did on the grounds it did. In other words, were members entitled in reaching their decision to give effect to their acceptance of the cruelty argument?




In seeking to answer that question it is (as the judge very clearly explained at pages 523j to 525g of his judgment) critical to distinguish between the legal position of the private landowner and that of a land-owning local authority. To the famous question asked by the owner of the vineyard ("Is it not lawful for me to do what I will with mine own?" St Matthew, chapter 20, verse 15) the modern answer would be clear: "Yes, subject to such regulatory and other constraints as the law imposes". But if the same question were posed by a local authority the answer would be different. It would be: "No, it is not lawful for you to do anything save what the law expressly or impliedly authorises. You enjoy no unfettered discretions. There are legal limits to every power you have". As Laws J put it (at page 524f), the rule for local authorities is that any action to be taken must be justified by positive law.




The positive law in issue in this case is agreed by the parties to be section 120 (1)(b) of the Local Government Act 1972 That provides:


"(1)For the purposes of -


(a) ……


(b) the benefit, improvement or development of their area,


a principal council may acquire by agreement any land, whether situated inside or outside their area."


At first sight this section has little to do with the present case, since we are not dealing with the acquisition of land but with the management or use of land which the county council acquired over 70 years ago. But the county council is a principal council within the statutory definition; we have been referred to no statutory provision or rule of law more closely in point; any other provision, unless more specific, would be bound to require powers to be exercised for the public good; and it seems perhaps reasonable to accept that the purposes for which land may be acquired are or may often be those to which the land should be applied after acquisition. I would...

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