Application for judicial review — Secretary of State’s certificate under section 57 (1) of the Landlord and Tenant Act 1954 challenged — Landlord’s interest held by local authority — Certificate given by Secretary of State that it was requisite for the purposes of the authority that the use and occupation of a piece of land let to the applicant should be changed — Appeal to Court of Appeal from refusal of Divisional Court to grant applicant an order of certiorari to quash certificate — Appellant a car breaker and scrap-metal dealer carrying on business on the land, a site of about one acre — Authority wished to obtain and use land for other purposes, the one finally relied upon in application for the certificate being that the site was required as a store for highway materials — Certificate attacked by appellant on various grounds, bad faith, misdirection as to meaning of ‘requisite’, lack of evidence to support certificate; and refusal of Divisional Court to admit fresh evidence (although considered de bene esse) criticised — Submissions unsuccessful — Allegation of bad faith rejected — Secretary of State correctly interpreted ‘requisite’ as ‘reasonably necessary’ — Sufficient material before him to support decision — Rules for admission of fresh evidence in judicial review cases discussed — Not admissible in present case — Appeal dismissed
This was an
appeal from a decision of the Queen’s Bench Divisional Court (Shaw LJ and
Kilner Brown J) refusing an application by Arthur Glyn Powis by way of judicial
review for an order of certiorari to quash a certificate given by the Secretary
of State under section 57 (1) of the Landlord and Tenant Act 1954. The
certificate was in respect of a piece of land in High Heavens Wood, Marlow
Bottom, Buckinghamshire, which had been let to the appellant by High Wycombe
Borough Council, predecessors of the second respondents, Buckinghamshire County
Council.
R G Rougier QC
and R Marshall-Andrews (instructed by A Banks & Co) appeared on behalf of
the appellant, the applicant below; Simon Brown (instructed by the Treasury
Solicitor) represented the Secretary of State; G N N Huskinson (instructed by
the Solicitor, Buckinghamshire County Council) represented the council, the
second respondents.
Giving the
judgment of the court at the invitation of Stephenson LJ, DUNN LJ said: This is
an appeal by leave from the refusal of the Divisional Court on judicial review
to grant an order of certiorari to bring up and quash a certificate of the
Secretary of State for the Environment given under section 57(1) of the
Landlord and Tenant Act 1954.
The material
statutory provisions are as follows:
57(1) Where the interest of the landlord or any
superior landlord in the property comprised in any tenancy belongs to or is
held . . . by a local authority, . . . the Minister or Board in charge of any
Government department may certify that it is requisite for the purposes of the
first-mentioned department, or, as the case may be, of the authority, . . .
that the use or occupation of the property or a part thereof shall be changed
by a specified date.
(2) A certificate under the last foregoing
subsection shall not be given unless the owner of the interest belonging or
held as mentioned in the last foregoing subsection has given to the tenant a
notice stating —
(a) that the question of the giving of such a
certificate is under consideration by the Minister or Board specified in the
notice, and
(b) that if within twenty-one days of the giving
of the notice the tenant makes to that Minister or Board representations in
writing with respect to that question, they will be considered before the
question is determined, and if the tenant makes any such representations within
the said twenty-one days the Minister or Board shall consider them before
determining whether to give the certificate.
Subsections (3)
and (4) of section 57 provide in effect that the section has no immediate
effect on the rights of a contractual tenant of business premises. But once the
contractual tenancy is validly
certificate has been given the tenant is precluded from applying for a new
tenancy and the court has no power to grant the tenant a new tenancy expiring
later than the date specified in the certificate. Section 59 of the Act
provides for compensation to a tenant in respect of whose property a
certificate has been given. Such compensation is in accordance with section 37
of the Act.
The result of
these provisions is that business tenants of local authorities and other public
bodies may be deprived by certificate under section 57 of the rights which they
would otherwise have had of applying to the county court to obtain a new
tenancy. They are deprived of the opportunity of testing in court any objection
by the landlord under section 30 of the Act to a grant of a new tenancy, with
the advantages of a public hearing, discovery of documents and cross-examination
of witnesses. The decision under section 57 is a ministerial decision which can
only be challenged in the courts on the well-established principles laid down
in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
1 KB 223 and other similar cases. As Lord Evershed MR said in X L Fisheries
Ltd v Leeds Corporation [1955] 2 QB 636 at p 648, the section
confers certain particular privileges on public authorities.
The appellant
is the tenant of about one acre of land at High Heavens Wood, Marlow Bottom,
Buckinghamshire. He held originally under a lease from the High Wycombe Borough
Council dated June 1 1964. The lease comprised, in addition to the land, a
right of way to afford access. It was a yearly tenancy determinable by a quarter’s
notice given by either party and the yearly rent was £5. Among the tenant’s
covenants there was a covenant ‘not to use or permit the said piece of land to
be used in connection with any trade or business other than that of breaking up
derelict motor vehicles’. The demised site was immediately adjacent to a large
rubbish tip owned by the borough council at High Heavens Wood and extending to
some 64 acres. On December 11 1972 a new lease in the same terms was entered
into between the borough council and the appellant. The appellant also had an
agreement with the borough council for the disposal of abandoned vehicles which
had been removed by the borough council pursuant to their powers and duties
under section 21(1) of the Civic Amenities Act 1967, and in addition he carried
on a general business on the site of a car breaker and scrap-metal dealer with
the concurrence of the borough council. At that time there were two other
traders, a Mr Jackman and a Mr Bowan, carrying on similar businesses at
different sites. Mr Jackman was a tenant of the borough council, Mr Bowan was
not. As a result of the local government reorganisation in 1974 the
Buckinghamshire County Council took over the relevant functions of the High
Wycombe Borough Council. The agreement for the disposal of vehicles with the
appellant was terminated, and on April 1 1974 the reversion of the lease vested
in the county council and they then became the appellant’s landlords.
On August 4
1975 outline planning permission for 2 1/2 acres of land immediately north of
the refuse tip was granted by the county council to itself for use as a gipsy
caravan site. This permission provides:
(4) a landscaping scheme shall be submitted to
and approved by the County Council . . . including the planting of trees and
shrubs where necessary . . . in order to preserve the amenities of the
neighbourhood.
The southern
part of this site encroached on to the northern part of the tenant’s land. In
fact the local authority did not use the northern part of the land because it
was in other ownership and would have required a compulsory purchase order. So
the limits of the caravan site were confined to the southern portion.
In March 1976
the county council, as they were entitled to do, also granted themselves
planning permission for the erection of a refuse pulveriser and transfer
station for the treatment of refuse and salvage at the High Heavens refuse tip.
Final planning permission was granted on March 23 1976. The permission was
subject to the following condition:
(1) The screen bank along the south side of the
transfer station shall be completed and landscaped within one year of the
station being brought into operation, and shall be constructed so as to
effectively screen the buildings, treatment area, highway depot and car
breaking areas from the south, and the trees shall be planted in the first
planting season following completion of any section of the bank.
The reasons
for imposing the above conditions are:
To minimise
the effect that the development is likely to have on the amenities of the
locality.
It was not
surprising that that condition was inserted, because High Heavens Wood was
scheduled as an area of outstanding natural beauty.
There was no
other condition attached to the planning permission although, according to the
county council in representations which they subsequently made to the Secretary
of State, the planning permission was granted on the understanding that the
area to be used for waste-disposal purposes would be kept to the minimum, that
the rest of the site would be restored to an agricultural use, and that the
appearance of the waste-disposal facility would be as tidy as the nature of the
business would allow. Two banks of earth were erected by the county council to
mark the southern limit of the refuse treatment area and to screen it from the
south.
Thus the
appellant’s site was sandwiched between the proposed gipsy caravan site to the
north and the refuse treatment area to the south. Meanwhile on August 27 1975
the county council served notice on the appellant under section 25 of the
Landlord and Tenant Act 1954. That notice stated that on the termination of the
current tenancy the county council intended to demolish or reconstruct the
whole or a substantial part of the premises or to carry out substantial work of
construction on the whole or part of them, and that they could not reasonably
do so without obtaining possession of the premises. This constituted reliance
on section 30(1)(f) of the Act. The appellant did not serve a counternotice
under section 26 but filed a defence alleging that the section 25 notice had
been waived by subsequent acceptance of rent by the county council. The judge
upheld that defence and gave judgment for the appellant on May 5 1977. So the
appellant still holds under the tenancy of December 11 1972.
Certainly by
1976 the county council had decided to reduce the number of car breakers from
three to one. They sent out invitations to tender for the lease of the site
occupied by Mr Jackman, opposite the appellant’s site to the west of the access
road to the tip. The appellant duly tendered on July 23 1976 but his tender was
not accepted. Mr Jackman also tendered but his tender was not accepted, and the
successful tenderer was a Mr Powell. Mr Jackman had by then given up his site
pursuant to a possession order against him in the county court on October 30
1975. The third breaker, Mr Bowan, remained in occupation of his site just to
the south of the appellant’s site but he has now also given up his site and
left the area.
In May 1977
shortly after the county court judgment the county council caused the
appellant’s telephone to be cut off at the site. We mention this because it is relied
on as evidence of bad faith on the part of the county council. The appellant at
once issued a writ in the Queen’s Bench Division and obtained an interim
injunction on June 3 1977 which was discharged on June 16 on undertakings by
the county council in effect not to take any steps to remove the telephone. The
appellant was granted his costs in any event.
On July 15
1977 the county council applied to the Secretary of State for a certificate
under section 57. The application was supported by reasons which were sent to
the minister under a covering letter, although the county council at first
refused to send their reasons to the appellant. However, these were later sent
to him by the Secretary of State. On August 4 the appellant submitted written
representations to the minister and there were further representations and
reasons by both parties including a report from a surveyor instructed by the
appellant. All this material was put before the Secretary of State in writing.
The reasons
given by the county council in support of their application were that the site
was required: (1) partly for a gipsy caravan site, (2) for a store for highways
material and (3) for the erection of fencing round the pulveriser and transfer
stations. The appellant having agreed to surrender the northern part of his
site for incorporation into the gipsy caravan site, and the proposed fencing
having been shown to be unnecessary, the only ground finally relied on by the
county council was that the site was required for use as a store for highways
materials.
On August 7
1978 the Secretary of State issued his decision by letter. Paragraph 2 of that
letter reads:
The Secretary
of State, having considered the representations of the tenant, is satisfied
that it is requisite for the purposes of the Council that the use and
occupation of the property should be changed by February 23 1979 and hereby
certifies accordingly.
On October 31
in reply to a request by the appellant, the Secretary of State gave his reasons
for his decision although, as he said, he was not bound to do so. He set out
the nature of the application, the submissions of both parties and his
conclusion, which is in the following terms:
5. The
Secretary of State carefully considered the submissions of both parties. It was
noted that the pulveriser complex proposals had gone ahead, apparently without
your client’s land being required in connection with preparatory work for
fencing, and account was taken of your client’s willingness to give up part of
his land for the proposed gypsy site. However, the evidence showed that only a
very small area was required in connection with the fencing proposals and it
was not accepted that the Council’s decision not to proceed in accordance with
the permission granted for a gypsy caravan site in 1975 indicated that they did
not really require Mr Powis’s land. The majority of your client’s land was, in
fact, required in connection with the Council’s proposals for a highways
materials store; and the Council’s submission was accepted that the land was
suitable for this purpose and that, whilst they did not necessarily have to
show that this was the case, no alternative site was available, either within
the area covered by planning permission or elsewhere. Your client’s personal
reasons for opposing the grant of a certificate were taken into account but, on
the evidence as a whole, the Secretary of State was satisfied that it was
requisite for the purposes of the Council that the use or occupation of the
land should be changed by the date specified in the certificate. He was
satisfied that the Council genuinely intended to carry out their proposals, to
which there was no obstacle such as a refusal of planning permission; and that
the public need to repossess the land in question justified taking your client’s
tenancy out of the normal operation of the provisions of Part II of the 1954
Act.
In summary
form the case of the appellant may be put in this way. The county council had
available a refuse tip extending to 64 acres. They had voluntarily reduced the
available area of that tip to about 10 acres described as ‘refuse treatment
area’ by using the southern part of the tip for forestry, which was a
limitation not imposed on them by the planning permission of March 23 1976. But
even with the remaining 10 acres there was ample room for the county council to
store the highways materials for which less than one acre was needed. As Mr
Bowan had given up his site the existing highways material store could remain
in its present position without interfering with the activities of the county
council in the refuse treatment area, and it was not necessary to use the
appellant’s site for the storage of highways materials. It was said that no
reasonable Secretary of State could have come to any other conclusion.
It was submitted
on behalf of the appellant that the history of the matter showed that the
application of the county council was not made bona fide but for the purpose of
evicting the appellant from his site for a purpose unconnected with the
application, namely so that the appellant could not compete with Mr Powell, the
successful tenderer on the site opposite.
Secondly it
was submitted that the Secretary of State misdirected himself in law as to the
meaning of the words ‘requisite for the purposes of the local authority’ in
section 57(1). It was said that those words meant more than ‘required’ or
‘reasonably required’ and that the word ‘requisite’ was synonymous with
‘necessary’ or ‘reasonably necessary for the purposes of the county council’.
The Divisional Court held that the word ‘requisite’ meant ‘required by
circumstances’ and it was submitted on behalf of the appellant that the
Divisional Court having given that meaning to the word ‘requisite’ should have
held that the minister had misdirected himself in the phraseology he used in
paragraph 5 of his letter of October 31 1978.
Thirdly it was
submitted that whether or not the use of the appellant’s site was requisite or
necessary for the purposes of the county council was a question of fact not
planning policy, and that there was no evidence apart from the bald assertion
of the county council to establish that fact. It was said that the Secretary of
State should not have based his decision on that assertion. Reliance was placed
on the decision of this court in Coleen Properties Ltd v Minister of
Housing and Local Government [1971] 1 WLR 433. It was submitted that the
Divisional Court in upholding the minister’s decision on the evidence
misdirected itself as to certain important issues of fact, and made findings of
fact which were unsupported by the evidence.
It was finally
submitted that the court should consider fresh evidence considered de bene
esse by the Divisional Court and that the Divisional Court were wrong to
refuse to allow such evidence to be admitted on judicial review.
We were told
that this was the first case in which the decision of a minister to give a
certificate under section 57(1) has been the subject of judicial review, and we
consider first the meaning of the word ‘requisite’ in the subsection. Taken by
itself the natural and ordinary meaning of the word ‘requisite’ is ‘required by
circumstances’ or ‘necessary’ as used in the Book of Common Prayer in the
phrase ‘to ask those things which are requisite and necessary as well for the
body as the soul’. But it is said on behalf of the Secretary of State and the
county council that a looser and more subjective meaning should be put on the
word in the context of this particular Act of Parliament. It is said that in
that context the word means ‘reasonably wanted for the purpose which the local
authority genuinely and bona fide intends to carry out’.
Section 57
appears in Part IV of the Act. Part II of the Act enables certain tenants of
business premises to obtain new tenancies in certain cases. Some business
tenancies, eg agricultural tenancies which are covered by other legislation,
are excluded from Part II. The material sections of Part II are expressed to be
subject to Part IV, which contains a group of sections giving any minister
power to give a certificate in effect excluding the tenant from his rights
under Part II. Different language is used in each of these sections as to the
circumstances in which the minister may give a certificate of change of use.
The words in subsection (1) of section 57 are, as I have already quoted,
‘requisite for the purposes of the first-mentioned department’.
The words in
subsection (5) are that the minister:
may certify
that it is necessary in the public interest . . .
In subsection
(7) are the words:
Where the
interest of the landlord . . . belongs to the National Trust the Minister of
Works may certify that it is requisite, for the purpose of securing that the
property will as from a specified date be used or occupied in a manner better
suited to the nature thereof, . . .
In section 58,
which is concerned with ‘Termination on special grounds of tenancies to which
Part II applies’, subsection (1) provides that the minister may certify:
that for
reasons of national security it is necessary that the use or occupation of the
property should be discontinued or changed.
Subsection
3(a) of that section provides that:
Where the
landlord’s interest . . . is held by statutory undertakers, nothing in this Act
shall invalidate an agreement to the effect —
(a) that where the Minister . . . certifies that
possession of the property comprised in the tenancy or a part thereof is
urgently required for carrying out repairs (whether on that property or
elsewhere) which are needed for the proper operation of the landlord’s
undertaking, the tenancy may be terminated . . .
Section 60,
which deals with ‘Special provisions as to premises provided under the
Distribution of Industry Acts’ provides that the:
Board of
Trade certify that it is necessary or expedient for achieving the objects of
the said Acts that the use or occupation of the property should be changed. . .
These
different words were described by counsel in X L Fisheries Ltd v Leeds
Corporation as ‘a rising scale of urgency’, and in this case by counsel for
the county council as a ‘hierarchy of terms’, and it was submitted that the
word ‘requisite’ comes low in the hierarchy and that it must mean something
less than necessary. We accept that in the context of Part IV of the Act the
word ‘requisite’ should be given a less exacting meaning than ‘necessary’ in
the sense of ‘indispensable’ and that the word ‘necessary’ must be qualified so
as to give effect to that. We would say that ‘reasonably necessary’ was
compatible both with the ordinary and natural meaning of the word ‘requisite’
and the context of the section in which it appears in this part of the Act.
Little
assistance is to be derived from the construction given by courts to the same
word used in other statutes. The only case which
anything like the present context was Robinson v Minister of Town and
Country Planning [1947] 1 KB 702, in which the word ‘requisite’ in section
1 (1) of the Town and Country Planning Act 1944 fell to be construed. At p 713
Lord Greene MR said:
The words
‘requisite’ and ‘satisfactorily’ clearly indicate that the question is one of
opinion and policy, matters which are peculiarly for the Minister himself to
decide. No objective test is possible.
It is
important to observe the context in which the word ‘requisite’ appears in
secton 1(1) of the Town and Country Planning Act 1944. The subsection provides:
1(1) Where the Minister of Town and Country
Planning . . . is satisfied that it is requisite, for the purpose of dealing
satisfactorily with extensive war damage in the area of a local planning
authority, that a part or parts of their area, consisting of land shown to his
satisfaction to have sustained war damage or of such land together with other
land contiguous or adjacent thereto, should be laid out afresh and redeveloped
as a whole, an order declaring . . . the land to be . . . land subject to
compulsory purchase . . . may be made by the Minister.
The case
affords little if any assistance as to the meaning of the word itself, though
it is valuable as to the nature of the minister’s decision.
In Coleen
Properties Ltd v Minister of Housing and Local Government, supra,
the court had to consider the words ‘reasonably necessary’, which is the
meaning we have put on the word ‘requisite’. Lord Denning MR at p 438,
described it as an inference of fact. Sachs LJ at p 439 C said this:
The question
before [the minister] was not, to my mind, one of policy: it was in essence a
question of fact that had to be established as a condition precedent to the
exercise of the powers to take away the subject’s property. It was no less a
question of fact because it involved forming a judgment on matters on which
expert opinion can and indeed ought to be given. (I rather doubt whether there
is much material difference between the view I have just expressed and that of
Mr Slynn who has argued that the question was simply a matter of planning
judgment which had to be based on evidence.)
We agree with
the words of Sachs LJ which I have just read, which appear in brackets in the
last sentence, as referable to this case. We think it matters not whether the
decision of the minister is described as one of opinion and planning policy or
as forming a judgment on matters of fact and opinion. In either case the
minister has to arrive at a value judgment based on facts. If in arriving at
that decision the minister asks himself the wrong questions and so errs in law,
or if he takes into account matters he should not have taken into account or
fails to take into account matters he should have taken into account, or if
there is no evidence to support his decision so that it is contrary to all the
evidence before him, then the court can interfere with his conclusion.
Did the
minister err in law by putting the wrong meaning on the word ‘requisite’? If he did his decision cannot stand. The
answer to this question depends on the terms of the minister’s reasons of
October 31 1978 and in particular paragraph 5. Although the minister used the
word ‘required’ in three different places in that paragraph in the sense of
‘wanted’, which is different from ‘reasonably necessary’, he ended the
paragraph in this way:
. . . and the
Council’s submission was accepted that the land was suitable for this purpose
and that, whilst they did not necessarily have to show that this was the case,
no alternative site was available, either within the area covered by planning
permission or elsewhere. Your client’s personal reasons for opposing the grant
of a certificate were taken into account but, on the evidence as a whole, the
Secretary of State was satisfied that it was requisite for the purposes of the
Council that the use or occupation of the land should be changed by the date
specified in the certificate. He was satisfied that the Council genuinely
intended to carry out their proposals, to which there was no obstacle such as a
refusal of planning permission; and that the public need to repossess the land
in question justified taking your client’s tenancy out of the normal operation
of the provisions of Part II of the 1954 Act.
What the
minister was there saying was:
I think that
the word requisite means genuinely required, but if I am wrong about that and
if I have to consider whether alternative sites were available so that I can be
satisfied that the appellant’s site was reasonably necessary for the purposes
of the county council, then I am satisfied that it was.
Despite the
submissions of counsel for the appellant, there is nothing wrong in the
minister expressing himself in this way. It is a type of formula commonly used
by judges and we cannot find that the minister erred in law in using it.
But then it
was said that the only evidence before the minister was the bald assertion of
the county council that no alternative sites were available and that
accordingly the appellant’s site was reasonably necessary for their purposes.
It was said that the minister should not have acted on that bald assertion in
the light of the evidence on behalf of the appellant and especially the
statement of the surveyor which was before him. It was said that the county
council made no attempt to put before the minister evidence of the acreage
required for each of their activities within the refuse treatment area, so as
to demonstrate that it was reasonably necessary for them to use the appellant’s
site for a highways material store.
Reliance was
placed on the statement of Lord Denning MR in Coleen Properties Ltd v Minister
of Housing and Local Government, supra at p 437 H:
At any rate,
I am quite clear that the mere ipse dixit of the local council is not
sufficient. There must be some evidence to support their assertion. And here
there was none.
It is said that
that statement exactly reflects the situation in this case in that the only
evidence before the minister was the ipse dixit of the county council.
It is important to see the facts of Coleen Properties Ltd v Minister
of Housing and Local Government. There had been a public inquiry. Evidence
had been called before the inspector. Witnesses had been examined and
cross-examined. The inspector had made a report containing his findings of
fact, conclusions and recommendations. The minister reversed his
recommendations. There was no evidence on which he could do so except the
statement of the advocate for the local authority that the land was reasonably
necessary for the proposed redevelopment. The situation here is quite
different. Subsection (2) of section 57 does not envisage an inquiry or other
hearing and no inquiry or hearing was held. The tenant was entitled to make
representations in writing, which he did. There is not even a provision in the
subsection for reasons to be given by the local authority, although reasons
were in fact given. And there were counter-reasons and counter-representations
by both parties. All this material was before the minister and it amounted to
considerably more material than was envisaged by the subsection.
The nature of
the material on which a minister is entitled to rely in reaching a decision
must depend on the statutory provisions and the circumstances of each case. It
may well be that where there is a public hearing the minister should not rely
on bare assertions unsupported by evidence. But where, as here, there was no
public hearing, the minister must assess the submissions and reach his
conclusion as best he can on the material put before him. It is a matter for
him to weigh the statements submitted to him and reach his decision in
accordance with them.
The minister
summarised the submissions of the county council in paragraph 3 of his letter
in this way:
The Council
submitted that it was essential that the materials store be between the
pulveriser complex and gypsy site for the pulveriser complex to remain secure
and this would also facilitate use of the containers and the movement of
vehicles in and around the pulveriser. An earth-bank screen was being
constructed south of the transfer station and treatment area, in accordance
with the planning consent, beyond which only forestry would be undertaken and
the council argued that, for that reason, the treatment area could not be moved
further south. Because a number of activities would be concentrated in the
treatment area, it was stated to be impossible for highways materials to be
stored there as well, and it was said to be impracticable to locate a highways
depot on the far side of the waste disposal complex. The Council submitted that
the depot at High Heavens Wood was used by Wycombe District Council, as agent
authority for the County Council, to keep materials for use on roads within the
boundaries of the former borough of High Wycombe and had to be easily
accessible in times of emergency.
Then the
minister deals with alternative depots at different sites which were not relied
on in this court by the appellant.
The minister
accepted those submissions in paragraph 5. It was not necessary for the
minister to go further and insist on evidence of the acreage of each activity
proposed by the county council in order to check its submissions. There were
other relevant considerations than mere acreage, eg the access to the various
sites and the security of the pulveriser installation. It is impossible to say
that the minister was wrong in taking into account the material put before him
by the
of the various sites his decision was thereby vitiated.
The Secretary
of State and the Divisional Court both rejected the submission of bad faith on
the part of the county council. Bad faith was, however, relied on but not
pressed in this court and we think the Divisional Court were right to reject
it. At the same time we cannot help thinking that it was foolish of the county
council to threaten to cut off the appellant’s telephone and unwise of them not
to serve another notice under section 25 after the dismissal of the county
court proceedings, and seek to obtain possession under Part II of the Act as
they did in the case of Mr Jackman. But those matters were all before the
Secretary of State and it is impossible on judicial review to disturb his
finding that the county council genuinely required this site for their
purposes.
Finally there
was an application on behalf of the appellant to admit fresh evidence which the
Divisional Court had refused to admit. Like the Divisional Court we considered
the evidence de bene esse. What are the principles on which fresh
evidence should be admitted on judicial review?
They are (1) that the court can receive evidence to show what material
was before the minister or inferior tribunal (Ashbridge Investments Ltd
v Minister of Housing and Local Government [1965] 1 WLR 1320 per Lord
Denning MR at p 1327): (2) where the jurisdiction of the minister or inferior
tribunal depends on a question of fact, or where the question is whether
essential procedural requirements were observed, the court may receive and
consider additional evidence to determine the jurisdictional fact or procedural
error (see de Smith’s Judicial Review of Administrative Action 4th Ed at
pp 140 and 141 and cases there cited): (3) where the proceedings are tainted by
misconduct on the part of the minister or member of the inferior tribunal or
the parties before it. Examples of such misconduct are bias by the
decision-making body, or fraud or perjury by a party. In each case fresh
evidence is admissible to prove the particular misconduct alleged (see R
v West Sussex Quarter Sessions [1974] QB 24 per Orr LJ at p 39 and
Lawton LJ at p 42).
There was
discussion at the Bar as to the situation where a party deliberately suppressed
material facts with the intention of misleading the minister. If that were the
situation then it would be for the court to consider whether the conduct of
that party could be described as fraudulent so as to permit the admission of
fresh evidence.
It is said
that there is a distinction between cases such as the West Sussex case,
where certiorari was sought to quash the decision of an inferior tribunal after
a hearing, and cases such as the present where it is sought to quash the
decision of the minister where there has been no hearing. We can find no such
distinction and the remarks of the majority in the West Sussex case are
quite general in their application to certiorari.
Reliance was
placed by counsel for the appellant on the case of Secretary of State for
Education and Science v Tameside Metropolitan Borough Council [1977]
AC 1014. In that case fresh evidence was admitted to the Court of Appeal by
consent. Certain passages in the judgments of Scarman LJ in the Court of Appeal
at p 1030 E, and of the speeches of Lord Wilberforce at p 1047 D and Lord
Diplock at p 1064, were particularly relied on by counsel for the appellant. It
was said that those statements support the proposition that if the minister is
misled by the failure of one party falling short of fraud to put before him
evidence which should have been put before him, and on which he would probably
have come to a different conclusion to that to which he came on the evidence
which was put before him, then the court on judicial review should admit that
evidence as fresh evidence. It was said that to fail to do so would be a breach
of natural justice.
The Tameside
case was a very special case. In effect the minister was himself reviewing the
decision of the local authority and his decision was analogous to the position
of the court on judicial review. The evidence was admitted in the Court of
Appeal by consent. The case is not authority for the proposition relied on by
counsel for the appellants. Indeed there are indications in the speeches in the
House of Lords to the contrary (see Lord Wilberforce at p 1052 C):
To rephrase
the question: on June 11 1976 (this is the date of the direction, and we are
not entitled to see what happened thereafter), could it be said that the
authority was acting unreasonably in proceeding with a selection procedure
which was otherwise workable in face of the possibility of persistent
opposition by teachers’ unions and individual teachers, or would the only
(not ‘the more’) reasonable course have been for the authority to abandon its
plans? This is, I think, the ultimate
factual question in the case. And I think that it must be answered in the
negative — ie that it could not be unreasonable, in June 1976, and assuming
that the Secretary of State did not interfere, for the authority to put forward
a plan to act on its approved procedure. The teachers, after all, are public
servants, with responsibility for their pupils. They were under a duty to
produce reports. These reports and the records in the primary schools are
public property. I do not think that it could be unreasonable (not ‘was
unreasonable’) for the authority to take the view that if the Secretary of
State did not intervene under his statutory powers the teachers would
co-operate in working the authority’s procedure — a procedure which had, in
similar form, been operated in part of this very area.
And Lord
Russell at p 1076 E said:
The question
whether the Secretary of State was justified in his conclusion that the
proposals of the local authority were unreasonable falls to be decided at the
date of his conclusion, June 11: that is common ground. I would not however
subscribe to the view that facts subsequently brought forward as then existing
can properly be relied upon as showing that the proposals were not unreasonable
unless those facts are of such a character that they can be taken to have been
within the knowledge of the department.
If there is
doubt as to the construction of those words of Lord Russell, we agree, save in
one respect, with the construction put upon them by the reporter in the
headnote at p 1016 C:
Facts
subsequently brought forward as existing on June 11 could not properly be
relied on as showing that the authority’s proposals were not unreasonable
unless they were of such a character that they could be taken to have been
within the knowledge of the Secretary of State.
The words ‘the
department’ used by Lord Russell at the end of his speech are distinguishable
from the words ‘the Secretary of State’ used by the reporter at the end of the
headnote, unless those words are to be interpreted as meaning ‘the Secretary of
State or his department’. The converse of Lord Russell’s proposition as stated
by him is that fresh evidence may be admitted of facts within the knowledge of
the department though unknown to the minister at the time of his decision. This
is an example of one of the classic reasons for interfering with the
ministerial decision within Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223, namely, that such facts are plainly facts
which the minister should have taken into account. If he failed to do so, fresh
evidence of the facts within the knowledge of the department could be admitted
as a ground for quashing his decision.
This court is
bound by the majority judgments in R v West Sussex Quarter Sessions
supra, which formed the ratio decidendi of the case. Secretary of
State for Education and Science v Tameside Metropolitan Borough Council
is not authority for the proposition that the circumstances in which fresh
evidence on judicial review may be admitted can be extended beyond the
categories laid down in R v West Sussex Quarter Sessions.
There is
nothing in the fresh evidence in this case to bring it within any of the
categories of evidence which may be admitted on judicial review. We agree with
the Divisional Court that the fresh evidence is not admissible. But we do not
agree with the test proposed by the Divisional Court ‘so long as a minister or
a tribunal has balanced the factors and weighed the evidence before him or it,
no superior court should intervene unless it is plain that there has been such
manifest failure to administer justice that the decision is perverse’. We have
already stated the principles upon which fresh evidence may be admitted on
judicial review.
Although it is
true there are certain mistakes in the statements of fact at page XI of the
judgment of the Divisional Court, we do not think that those mistakes affected
the conclusion at which the court arrived. We think that they were right to
refuse the application for an order for certiorari and for the reasons which we
have stated in this judgment the appeal is accordingly dismissed.
The appeal
was dismissed, the order for costs being that the appellant was to pay half the
costs of each respondent. The order for costs in the court below was not
disturbed. Leave to appeal to the House of Lords was refused.
