Skip to main content

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
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
    1. Boyce v Paddington Borough Council [1903] 1 Ch 109
    2. Gregory and Another v London Borough of Camden [1966] 2 All ER 196
    3. R v Thames Magistrates Court, ex parte Greenbaum [1957] LGR 129
    4. R v Greater London Council, ex parte Blackburn [1976] 3 All ER 184
    5. Supreme Court Act 1981
    6. Inland Revenue Commissioners and National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93
    7. R v Felixstowe Justices, ex parte Leigh and another [1987] 1 All ER 551
    8. R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 1 All ER 754
    9. R v Inspectorate of Pollution and another, ex parte Greenpeace Ltd [1994] 4 All ER 329 (No 2)
    10. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
  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

Gregory and Another v London Borough of Camden [1966] 2 All ER 196

PAULL J:....On the facts, which I have to assume, there can be no doubt that the order was ultra vires. It is so alleged, and I must assume that that is right. The question before me is: have the plaintiffs a right to come to court for a declaration that the orders were ultra vires, or are the defendants right when they say under para 18 that the action is misconceived? That is the point which I have to determine. Is this action misconceived in that the plaintiffs, even on those facts, have no right to come to court for a declaration?

That matter has produced most interesting arguments. One starts with this, that the main case relied on by counsel for the plaintiffs is a case where a writ of certiorari was sought, and counsel's first argument to me is that if the plaintiffs had known in time they could have applied for certiorari; that it was not their fault that they did not know in time, and that if they had the right to apply for certiorari, then they were entitled to the declarations sought, since the courts have held that the right to a declaration is not destroyed because proceedings for certiorari could have been brought. In that connection counsel cited Barnard v National Dock Labour Board. All that I need refer to there is Denning LJ's judgment where he said ([1953] 1 All ER at p 1119; [1953] 2 QB at p 41):

"It is axiomatic that when a statutory tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law, what is to be done? The remedy by certiorari is hedged round by limitations and may not be available. Why, then, should not the court intervene by declaration and injunction? If it cannot so intervene, it would mean that the tribunal could disregard the law".

At first sight, those appear to be very strong words, and, indeed, they are strong from the point of view that, if proceedings for certiorari can be brought and are not taken, that does not necessarily do away with the right to bring proceedings for a declaration. It is, however, to be noted that in this case there is no claim for an injunction at all; the plaintiffs do not claim that they are entitled to an injunction. The only effect of my making a declaration would be, as counsel for the plaintiffs puts it, that it would give the defendants an opportunity of having second thoughts. The building of this school is still going on and the building is rapidly being erected, but counsel for the plaintiffs says that, though any declaration will not affect that, yet the building is to be built in two stages, and there is the question of the second access; so that, if the court makes a declaration, the defendants may have second thoughts and may not proceed with the second stage of building, or may not allow the second access. That is vague. This is not a case where the court is being asked to stop something. The court is simply being asked for a declaration.....

Looking at the general position in law in this case, I start with this. Building on the convent land raises the question of a loss of amenity by the plaintiffs, the occupiers of a piece of land, because of acts of an adjoining occupier of the land. I will refer to that adjoining occupier as (the trustees(, because this building was in fact being erected under the aegis of trustees, who in fact are the trustees of the lands of the convent. Apart from having to get permission from the planning authority, the trustees have the absolute right in law to do what they are doing, namely, to build a school on that land and to make the access to the school over those pieces of their land for which permission was given to have access. That might hit the plaintiffs hard, but things done by an occupier may hit hard the occupier of adjoining land. To give two examples: I own a house, and on the next plot to my house, which I thought was going to be part of a large garden, there is erected another house. It is erected within two or three feet of my house, just over the border. The effect of that is to block out the light from my windows. Unless I have the right of ancient lights, no legal right of mine has been affected. It is to be noticed that, all the way through in the case to which I have referred, the words 'legal rights' are used. One has to consider the legal rights of someone. Again, next to my land there may be built a school. I may be very much affected by the noise of the children coming out to play, by the shouts, by the laughter and everything else; but unless I can establish that it is a nuisance, I have lost no legal right. I have lost amenities, but no legal rights. My legal rights are exactly as they were before the building was built and the noise arose.

In this case, no question of public rights is involved, as where there is interference with the highway. There is a long series of cases on this, and my attention has been drawn to a number of them, ranging from R v Surrey Justices to R v Bradford-on-Avon Urban District Council, Ex p Boulter. All those cases involve rights over public roadways in one shape or another; in other words, places where the public have rights. In this case, I have merely to consider the right of one landowner in relation to the acts of another landowner, and in relation to the fact that the adjoining landowner is putting up a building to be used in a certain way.

The question that I would ask on this matter is: I am concerned with the rights of adjoining occupiers so far as the building is concerned, and if there is no cause of action against a neighbour because he is putting up that building, or because he is proposing to use it for a certain purpose, then is there any right to step in if the adjoining occupier has to ask a third party for permission before he can begin? Let me take the case of contract. I occupy land next door to B. So far as I am concerned, B has a perfect right to build right up to my border; but suppose B cannot do that because he has a contract with X whereby he has to get the permission of X to build. B starts to build, not having got the permission of X. Am I entitled to enjoin him? Or is B entitled to say that that is nothing to do with me, it is a matter between X and himself? In my view, quite clearly B is so entitled. I, as occupier, although affected by what B is doing, must put up with the consequences unless B is in some way affecting my legal rights, and I have no legal right to object to the building which he is putting up. Therefore, if this were a case of contract between the defendants and the trustees, the plaintiffs would have no rights at all.

If that is how the matter stands in contract, does it make any difference that the matter is not one of contract but of statute? That may well depend on the purpose for which the statute was passed. There are certain statutes which were passed to protect a certain class of people; and, if a statute is passed to protect a class of persons, then anyone in that class who is affected by a breach of the statute may bring an action for damages in respect thereof. The Town Planning Acts, however, have been passed to give rights to the public only, and not to any particular class of the public....

In this case, as I see it, the plaintiffs are really saying that in effect they have a right which they would not have had but for the passing of the Town and Country Planning Act, viz, a right to look and see if the Minister or the town planning authority has made an order which is not a good order, and, if they find that this is so, then they can take steps whereby this building may possibly be stopped. That is essentially what the plaintiffs are saying for this action is no use to them whatsoever unless in some way it will influence the question whether the trustees can or cannot go on with their building. Looking at it in that rather simple way, it seems to me that the answer to the question which I have to determine is that the plaintiffs have no legal right to step in at all. They may have suffered damnum, that is to say, loss in one way or another, but they have not suffered injuria, that is to say, any legal wrong. There are many acts which cause loss which give no legal rights. Before one can come to a court of law, one must suffer an injuria as well as damnum; one must have suffered a legal wrong as well as an actual loss of money or amenity or something else. What is taking place on this land...is something in respect of which, as between the plaintiffs and the trustees, there are no legal rights whatsoever, and the plaintiffs cannot interfere by maintaining that a third party's permission must be got before the building can be built. This may be a simple way of looking at this matter, but it seems to me that that is the way by which one can find the solution which seems to fit in with legal principles and with the purposes for which these Acts have been passed.