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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
    1. Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.
    2. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    3. Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
    4. H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871
    5. British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165
    6. Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724
    7. Robertson v Minister of Pensions [1948] 2 All ER 767
    8. Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496
    9. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204
    10. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643
    11. Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720
    12. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871

WILLIS J read the following judgment. Counsel for the applicant applies under s 179 of the Town and Country Planning Act 1962 to quash a decision of the Minister of Housing and Local Government (hereinafter referred to as the Minister) given on 14 April 1969, whereby he dismissed an appeal made to him by the applicants against the decision of the second respondents, the Walton and Weybridge Urban District Council, refusing the applicants planning permission to extract sand, gravel and ballast from about 42 acres of land at Walton-on-Thames, part of an agricultural holding of 108 acres known as Rivernook Farm.....

The Minister gave his decision on 14 April 1969. The letter set out verbatim the inspector's conclusions and proceeded in para 3 as follows:

"The Minister has considered his Inspector's conclusions and appreciates his reasons for not making a recommendation. He notes that the Inspector would have recommended that the appeal should be allowed if the 'agricultural reservations' were not to be regarded as inviolable; and he appreciates that the proposals for restoring the land after working have been very carefully thought out....It is the Minister's present policy that land in the reservations should not be released for mineral working unless the Minister of Agriculture, Fisheries and Food is not opposed to working. In the present case the agricultural objection has not been waived, and the Minister has therefore decided not to grant planning permission for the working of the appeal site".

He dismissed the appeal. It is those last two sentences in the decision letter which lie at the heart of the matter in issue; and it is submitted, first of all, by counsel for the applicants, that they show, in this case, that the Minister had so fettered his own discretion to decide the appeal by the policy which he had adopted that the decisive matter was not the exercise of his own discretion on a consideration of the report and other material considerations, but the sustained objection of the Minister of Agriculture. In effect, he says that the decision was not that of the Minister of Housing and Local Government, the tribunal entrusted with the duty to decide, but the Minister of Agriculture, who had no status save perhaps in a consultative capacity and certainly no status to make the effective decision....

In general support of his main submission, counsel for the applicants has referred me to Professor de Smith's well-known work Judicial Review of Administrative Action and to certain of the cases cited therein. He really puts his argument in two ways: (1) that the Minister has fettered his discretion by a self created rule of policy; and (2) that the Minister, who has a duty to exercise his own discretion in determining an appeal, has in this case delegated that duty to the Minister of Agriculture, who has no such duty and is, statutorily, a stranger to any decision. It is, of course, common ground that the Minister is entitled to have a policy and to decide an appeal in the context of that policy. He can also differ from the inspector on any question of fact, and disagree with the inspector's conclusion and recommendations. He can, and no doubt should, reject any recommendation of an inspector which runs counter to his policy, since, as counsel for the Minister points out, it is of the very essence of the duties laid on the Minister by s 1 of the Minister of Town and Country Planning Act 1943 that he should secure consistency and continuity in the framing and execution of a national policy with respect to the use and development of land.

The courts have no authority to interfere with the way in which the Minister carries out his planning policy (see per Lord Denning MR Lord Luke of Pavenham v Minister of Housing and Local Government ([1967] 2 All ER 1066 at 1070, [1968] 1 QB 172 at 192)). There is also no question but that the Minister, before making a decision whether or not to allow an appeal, may obtain the views of other government departments (see Darlassis v Minister of Education ((1954) 52 LGR 304 at 318) per Barry J)...

The nearest case to the present which was referred to in argument on this aspect of the case is Myton Ltd v Minister of Housing and Local Government. It concerned an application to develop land in an area of Leeds affected by what was known as a 'sketch plan' for a green belt, in other words, tentative proposals made ex parte without having reached the stage of being part of the development plan. The argument (which did not in the result succeed) was that there was a duty on the Minister to address his mind to the question whether the appeal site was required for the green belt and, if the circumstances justified it, to allow development, and that he had failed in this duty. Widgery J said ((1963) 61 LGR at 561, 562):

"I accept Mr. Bridge's contention that there is such a duty on the Minister. I think that it would be lamentable if in circumstances where a sketch plan has been prepared and where there is in effect a tentative proposal for a green belt, all applications for development within that green belt area should be automatically and peremptorily refused merely because provision of a green belt was in contemplation. The local planning authority's decision in this case is not for review before me, but I am bound to observe that the very speed with which they disposed of the application at least raises some suspicion that they dealt with the matter as being already pre-judged by the fact that the land was within the sketch plan green belt".

It is, of course, clear that if the Minister has prejudged any genuine consideration of the matter before him, or has failed to give genuine consideration to (inter alia) the inspector's report, he has failed to carry out his statutory duties properly (see Franklin v Minister of Town and Country Planning).

In the present case counsel for the applicants does not shrink from submitting that the decision letter shows that no genuine consideration was given to the question whether planning permission could, in the circumstances, be granted. I have carefully considered the authorities cited by counsel, but I have not found any clear guide to what my decision should be in this case. I have said enough to make it clear that I recognise that in the field of policy, and in relation to Ministerial decisions coloured or dictated by policy, the courts will interfere only within a strictly circumscribed field (see per Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corpn). It is also clear, and is conceded by counsel for the Minister, that where a Minister is entrusted by Parliament with the decision of any particular case he must keep that actual decision in the last resort in his own hands (see R v Minister of Transport, ex parte Grey Coaches). I return, therefore, to the words used by the Minister. It seems to me that he has said in language which admits of no doubt that his decision to refuse permission was solely in pursuance of a policy not to permit minerals in the Waters agricultural reserves to be worked unless the Minister of Agriculture was not opposed to their working. Counsel for the Minister submits that, read as a whole, the decision letter should be taken as implying some such words as 'I have gone through the exercise of taking all material considerations into account, but you have not persuaded me that this is such an exceptional case as would justify me in relaxing my policy; therefore I stick to it and apply it'. If that were the right construction perhaps counsel for the Minister would be justified in saying that there was no error in law. But in my judgment the language used is not open to any such implication. There is no indication that this might be an exceptional case such as would or could induce the Minister to change his policy. It is common ground that the Minister must be open to persuasion that the land should not remain in the Waters reservation. How can his mind be open to persuasion, how can an applicant establish an 'exceptional case' in the case of an inflexible attitude by the Minister of Agriculture? That attitude was well known before the inquiry, it was maintained during the inquiry, and presumably thereafter. The inquiry was no doubt, in a sense, into the Minister of Agriculture's objection, since, apart from that objection, it might well have been that no inquiry would have been necessary, but I do not think that the Minister, after the inquiry, can be said in any real sense to have given genuine consideration to whether, on planning (including agricultural) grounds, this land could be worked. It seems to me that by adopting and applying his stated policy he has in effect inhibited himself from exercising a proper discretion (which would of course be guided by policy considerations) in any case where the Minister of Agriculture has made and maintained an objection to mineral working in an agricultural reservation. Everything else might point to the desirability of granting permission, but by applying and acting on his stated policy I think that the Minister has fettered himself in such a way that in this case it was not he who made the decision for which Parliament made him responsible. It was the decision of the Minister of Agriculture not to waive his objection which was decisive in this case, and while that might properly prove to be the decisive factor for the Minister when taking into account all material considerations, it seems to me quite wrong for a policy to be applied which in reality eliminates all the material considerations save only the consideration, when that is the case, that the Minister of Agriculture objects. That means, as I think, that the Minister has by his stated policy delegated to the Minister of Agriculture the effective decision on any appeal within the agricultural reservations where the latter objects to the working. I am quite unable to accept that in these circumstances, the public inquiry could be justified, as counsel for the Minister submits, as giving the Minister of Agriculture the opportunity to hear the case and, if he thought right, to waive his objection. Unless there was a real chance that he would do so - and it seems to me clear beyond question that there was not - the inquiry was quite futile in my view, certainly as a means of providing the Minister with the material on which he could have exercised, and should have exercised, a genuine, unfettered discretion.....

On the main ground on which this case has been argued, however, I am satisfied that the applicants should succeed. I think that the Minister failed to exercise a proper or indeed any discretion by reason of the fetter which he imposed on its exercise in acting solely in accordance with his stated policy; and further that on the true construction of the Minister's letter the decision to dismiss the appeal, while purporting to be that of the Minister, was in fact, and improperly, that of the Minister of Agriculture.