Section 10
Administrative law
- INTRODUCTIONS -
Administrative law
Professor Keith Davies , J.P., M.A., LL.M., Barrister,
Hon. Assoc. R.I.C.S., Faculty of Law, University of Reading
Local government administration
Mark Heath, LL.B., Solicitor, Dip.LG.,
Solicitor to the Council, Southampton City Council
10.1: General
Public participation in highway orders
Paul Clayden, M.A., Solicitor, National Associaton of Local Councils
One of the fundamental principles of highway law is that alterations to the highway
network must not take place without members of the general public being allowed an
opportunity to register an objection or make a representation. The reason is that any
alteration may affect one or more members of the public and natural justice requires that
any person so affected shall be given a chance to put forward his views.
Mark Heath, LL.B. (Hons.), Principal Solicitor, Southampton City Council
The 1990s have seen a substantial quantity of planning legislation. In addition to
four consolidating Acts: the Town and Country Planning Act 1990, the Planning (Listed
Buildings and Conservation Areas) Act 1990, the Planning (Hazardous Substances) Act 1990,
and the Planning (Consequential Provisions) Act 1990 (known collectively as "the
Planning Acts"), there has already followed the Planning and Compensation Act 1991
which has both significantly amended the consolidating legislation and added to it.
While not attempting to cover all the existing and new legislation, this article seeks to
pick a path through it highlighting areas of importance for rights of way issues. The
relationship between Structure Plans and Local Plans is examined, along with the
significance of non-statutory Government guidance which increasingly places emphasis on
recreational and environmental matters.
Professor Victor Moore, University of Reading
Local planning authorities may seek to improve public access to land by entering into
agreements with developers or by attaching conditions to the grant of planning permission.
As statutory bodies, however, such authorities are necessarily constrained by the scope of
the powers conferred on them, and the potential to promote access in this way is limited.
Formerly no offer by a developer was valid unless the planning authority agreed to accept
it. A significant change introduced by the Planning and Compensation Act 1991, however, is
the concept of the "planning obligation" whereby developers can give
undertakings unilaterally which the Secretary of State can accept, even if the local
authority refused to do so.
David Braham Q.C.
This application for judicial review concerned a decision not to award to the
applicants the costs which they had incurred at a public inquiry which had followed the
making of a Definitive Map Modification Order. The application was upheld on the ground
that:
(1) the County Council had acted unreasonably in making the Modification
Order, in the sense in which 'unreasonable' was used in the Mercury case; and
(2) it had been 'Wednesbury unreasonable' to deal with the issue of costs on
the basis that the County Council had acted reasonably.
Professor Emeritus Keith Davies
A case note
The mainspring of administrative law is judicial review to challenge official decisions at
all levels alleged to be ultra vires, i.e. not within the limits of the relevant statutory
powers conferred on the authority which is being challenged.
In the Alconbury case the allegation was that it was ultra vires for the Secretary of
State to `recover' a planning appeal from the Inspector holding the public inquiry into
it, i.e. to take the final decision out of the Inspector's hands, because the legislation
that expressly provides for that procedure is contrary to Article 6 of the European
Convention on Human Rights. While accepting that Article 6 is in point, the House of
Lords concluded that the scope of the judicial review of decisions taken under that
procedure is sufficient to comply with the standards set by the European Court of Human
Rights. The Secretary of State is not 'an independent and impartial tribunal' for this
purpose, because his role in these cases is executive not judicial. He is subject (like
executive authorities generally) to correction by the courts in proceedings which are
themselves 'independent and impartial'.
Andrew Tabachnik, Barrister & Natasha Peter, Barrister
A case note.
In Burkett the House of Lords reviewed the time limits for applications for judicial
review in a class of case where litigants have been faced with an invidious choice between
challenging an early step before it is known whether it will be significant, thus running
the risk that the application will be judged to be premature, or challenging a later step
and then finding that, with hindsight, the earlier step is judged to be the real basis of
the complaint.
Professor Emeritus Keith Davies
The two main subdivisions of English public law generally, which of course includes
highways, are the ‘ultra vires’ principle (by which public authorities’
activities are kept within proper bounds) and the ‘public interest’ principle
(by which all individuals and organisations can be restrained from flouting laws which
exist for the public good). It is the latter principle which in recent times has given
rise to a topic of special interest: the use of the injunction in public law. Who can seek
it, why, when, and how? Is this really a fast developing area of law? Does unacceptable
hardship result from it, and violation of human rights? Four cases arising from the use of
injunctions as part of enforcement disputes in planning law recently caused this question
to be analysed from the planning point of view in the Court of Appeal.
Professor Emeritus Keith Davies
The House of Lords upheld the decision of the Court of Appeal that the grant of an
injunction under s.187B of the Town and Country Planning Act 1990 must be consistent with
the doctrine of proportionality where the defendant's home is at stake.
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