#16705 - Relevancy & Proprietary Problem Question Notes - Administrative Law

Associated Provincial Picture Houses Ltd v Wednesbury Corporation: "If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters."

Relevancy doctrine

Hanks v. Minister of Housing and Local Government: “if it be shown that an authority exercising a power has taken into account as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power, then the exercise of the power, normally at least, is bad. Similarly, if the authority fails to take into account as a relevant factor something which is relevant, and which is or ought to be known to it, and which it ought to have taken into account, the exercise of the power is normally bad.” Facts: A metropolitan borough council, as housing authority and in exercise of its powers under section 97, Part V, of the Housing Act, 1957, made a compulsory purchase order of land containing houses and other properties in the borough. They did so for two reasons. Firstly, housing considerations – there was urgent needing for housing in the borough, and the land to be purchased had residential potential. Secondly, planning considerations – realizing a road pattern for the area. This decision was challenged on the grounds of irrelevant factors. It was argued that Part V of the Act was limited to “housing considerations”, but that the true and dominant purpose of the council’s actions was motivated by redevelopment and highway improvement. Verdict: The matters which a housing authority was entitled to take into account in exercising its powers under section 97 of the Housing Act, 1957 , could not be defined by reference to any clear-cut dichotomy between "housing considerations" and "planning considerations" on the basis of excluding from "housing considerations" all matters falling within the purview of the planning authority under the Town and Country Planning Act, 1947 ; but that the housing authority could properly take into account any requirements of the appropriate planning authority if those requirements had to be considered and met in order that the housing authority could proceed to build the houses which it wished to build under Part V of the Housing Act, 1957. Accordingly, neither the borough council nor the Minister had taken into consideration matters which were not proper for consideration in the exercise of the borough council's powers under Part V of the Housing Act, 1957

NB. Tesco Stores Ltd v. Secretary of State for the Environment: “It is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision-maker wrongly takes the view that some consideration is not relevant and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision-maker to attribute to the relevant consideration such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense.”

Proprietary of purposes doctrine

Similarly, failure to use a power for a statutory purpose will justify judicial intervention.

• Municipal Council of Sydney v. Campbell [1925] AC 338 (PC)

Facts: Council had statutory power to acquire compulsorily land required for purpose of making or extending streets, as well as land required for "carrying out improvements in or remodelling any portion of the city." In connection with the extension of a street, they resolved to acquire the respondents' land for the latter purpose. They had previously been restrained from acquiring the land for the extension, on the ground that it was not really required for that purpose, but that its purchase was desired because of its probable increase in value. No plan for improving or remodelling the area was considered or proposed, and evidence as to proceedings in the Council showed that the appellants were endeavouring to give a new form to the transaction previously decided upon, rather than considering whether the respondents' land was required for improving or remodelling.

Verdict: at 343 per Duff J: the evidence sustained the lower Court's conclusion of fact that the appellants were exercising their powers for a purpose differing from those specified by the statute, and that they had rightly been restrained from acquiring the respondents' land.

• Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997

Facts: Under the Agricultural Marketing Act 1958, producers had to sell their milk to the Milk Marketing Board, which fixed the different prices paid for it in each of the eleven regions into which England and Wales were divided. The differentials reflected the varying costs of transporting the milk from the producers to the consumers, but they had been fixed several years ago, since when transport costs had altered. The South-Eastern Region producers contended that the differential between it and the Far-Western Region should be altered in a way which would incidentally have affected other regions. Since the constitution of the board, which consisted largely of members elected by the individual regions, made it impossible for the South-Eastern producers to obtain a majority for their proposals, they asked the Minister of Agriculture, Fisheries and Food to appoint a committee of investigation and when he refused applied to the court for an order of mandamus.

Verdict: improper reasons for denying committee of investigation. Lord Denning: “Taking the reasons which the Minister has given for his refusal, I take first the consideration in the letter of May 1, 1964, that if the complaint were upheld, he would be expected to make a statutory order. That was a bad reason which ought not to have influenced him. Second, I take the consideration that the complaint raised wide issues as a ground for refusing an investigation. That was a bad reason. The width of the issue would be a ground for holding an investigation, not for refusing it. The committee could hear the views of the producers in other regions. Third, I take the Minister's statement that it was a matter for the decision of the Milk Marketing Board, and not for him. I think he was thereby mistaking his powers. He has the ultimate word on prices. If the board regulates prices in a way which is contrary *1010 to the public interest, the Minister can of his own motion intervene and make an order to rectify the position, see section 20(2). Likewise, when a committee of investigation reports that the board is fixing prices in a way which is contrary to the interests of farmers, and not in the public interest, the Minister has power to make an order to rectify this position: see section 19(6)(c)…In my opinion, therefore, the Minister has been influenced by reasons which ought not to have weighed with him. He has, therefore, not properly exercised his discretion.”

NB in Hanks, it was noted that the proprietary of purpose and relevancy doctrines both fell within the broad category of ‘considerations’, and that is the relevant ground of review. Is there still a distinction?

What factors/purposes are relevant/proper is a matter of statutory interpretation. Padfield: legal limits on discretion “must be inferred from a construction of the Act read as a whole” (at p. 1033); it “is a matter to be determined by looking at the Act and its scope and object in conferring a discretion…” (ibid., at p. 1060, per Lord Upjohn).

Factors

Re Findlay: There is a distinction between “obligatory considerations”, which are those “the Act expressly or impliedly requires the Minister to take account of”, and “permissible considerations”, which “can properly be taken into account but do not have to be”. On this view there exist three types of consideration: at the extremes, there are those which must be taken account of and those which must be regarded; in between, however, is a category of factors whose relevance is for the decision-maker, rather than the court, to decide.

R (Corner House Research) v Director of the Serious Fraud Office: A “discretionary decision is not… vitiated by a failure to take into account a consideration which the decision-maker is not obliged by the law or the facts to take into account, even if he may properly do so” (Lord Bingham).

G (AP) v Scottish Ministers: The court took a similarly permissive approach, considering that if there was nothing in the relevant statutory provision explicitly or implicitly preventing the public entity from taking into account a given consideration, the entity should be free to consider it (subject of course to the consideration not being one that undermines Parliament’s intention).

Proprietary of purpose

Express statutory purpose

Municipal Council of Sydney v Campbell: “A body such as the Municipal Council of Sydney, authorised to take land compulsorily for specific purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the Courts will intervene.”

Implied statutory purpose

R v Somerset County Council, ex p Fewings: “[W]here a statute does not by...