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England and Wales Court of Appeal (Civil Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> R v The Secretary of State for the Environment, ex p. Ostler [1976] EWCA Civ 6 (16 March 1976)
Cite as: [1977] QB 122, [1976] EWCA Civ 6, [1977] 1 QB 122

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Neutral Citation Number:
Neutral Citation Number: [1976] EWCA Civ 8

(Interlocutory List)
Appeal from Order of Divisional Court

Royal Courts of Justice,
16th March 1976

B e f o r e :

(Lord Denning)






(Transcript of the shorthand notes of The Association
of Official Shorthandwriters, Ltd., Room 392,
Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C.2.)


Mr H.K. WOOLF (instructed by The Treasury Solicitor)
appeared on behalf of the Appellant.
Mr B.A. PAYTON and Mr C. MAGILL (instructed by Messrs Eland, Hore Patersons)
appeared on behalf of the Respondent.



Crown Copyright ©

    THE MASTER OF THE ROLLS: We are here presented with a nice question. Is Smith v. East Elloe Rural District Council, 1956 Appeal Cases, page 736, a good authority? - or, Has it been overruled by Anisminic v. Foreign Compensation Commission, 1969 2 Appeal Cases, page 147?

    Boston is an old port. It has a fine church, with its famous tower - the Boston Stump. The centre of the town has, however, in modern times become so congested with traffic that it has been necessary to make an inner relief road. The plan was launched as far back as 1965, but it was not till 1972 that the local authority took steps to acquire land compulsorily. It was to be done in two stages. First, to acquire the land needed for the trunk road itself. Second, to acquire the land needed for the side roads giving access to the trunk road. In respect of each stage there was a public inquiry to consider objections.

    The first inquiry (as to the trunk road itself) was held in September 1973. A firm of wine merchants called Bateman lodged objection on the ground that it would cut off the access to their yards. Now, in order to overcome that objection it is alleged that a secret assurance was given to Batemans by an officer of the Department of the Environment. Batemans were assured that at the second stage access would be given for the lorries by means of a lane called Craythorne Lane. This was a narrow lane leading out of the market place. Batemans were assured that at the second stage this lane would be widened so as to take their lorries. On getting that assurance, Batemans withdrew their objection at the first inquiry. That was a secret assurance, not known to the public at large.

    Now, there was another trader, Mr Ostler, who was interested. He was a corn merchant. His premises were at a corner of the Market Place where Craythorne Lane led out of it. He had no idea that Craythorne Lane was going to be widened. If it was to remain a narrow lane (as he thought) his business would not be affected by the proposed road. So he did not lodge any objection to it.

    The inquiry was held on the 11th and 12th September, 1973. The proposed new road was approved. It was followed by an order dated 28th March, 1974 under the Highways Act, 1959 for the stopping up of highways and constructing new ones: and an order dated 9th May, 1974- for the compulsory purchase of property needed in order to construct the proposed new road.

    Now Mr Ostler makes this point. He did not know of the secret agreement with Batemans. If he had, he would have lodged objection at the first stage. But not knowing of it, he made no opposition. So the orders were made in his absence.

    Now we come to the next item. In July 1974- the local authority made a supplementary order under which they proposed to widen Craythorne Lane itself. Now Mr Ostler did object to this. He thought that the widening of Craythorne Lane would injuriously affect his premises and his business: because they were at the corner of Craythorne Lane.

    This second stage was the subject of another inquiry. It was held in December 1974- for four days. Mr Ostler instructed solicitors to object on his behalf. He gave evidence. He sought to refer to the past history. In particular he wanted to say that he would have objected at the first stage if he had known that the whole project would affect his property. But he was not allowed to go into it. The Inspector said: "Mr Ostler, I can't allow that evidence. We are here to discuss the Craythorne Lane scheme only". So his evidence was excluded on that point. The Inspector made his report, recommending the widening of Craythorne Lane. The Minister confirmed the Order in July 1975.

    Two or three months later Mr Ostler got to know of the secret agreement with Batemans which had been made before the first inquiry. So in December 1975 he applied to the Divisional Court to quash, not the latest order in July 1975 about Craythorne Lane, but the earlier orders about the line of the trunk road and the acquisitions in consequence of it. He said that they were invalid. His case is that there was a want of natural justice and, further, that there was a want of good faith because of the secret agreement.

    The Divisional Court thought that the authority of Smith v. East Elloe might have been shaken by the Anisminic case. So they thought that there should be further evidence before them, such as evidence about the secret agreement and evidence as to whether or no there had been any lack of good faith or any want of natural justice. The Department feel that this taking of evidence would involve delay and hold up the work. So Mr Wolf has come to this Court by way of appeal.

    The earlier orders were made in March and May 1974. Much work has been done in pursuance of them. We are told that 80 per cent of the land has been acquired and 90 per cent of the buildings demolished. Nevertheless, Mr Ostler seeks to say that now, nearly two years later, those orders should be upset and declared to be null and void or set aside.

    Now it is quite clear that if Mr Ostler had come within six weeks, his complaint could and would have been considered by the Court. The relevant provision is contained in the Second Schedule of the Highways Act, 1959. It says:

    "If a person aggrieved by a scheme or order to which this Schedule applies desires to question the validity thereof, or of any provision contained therein, on the ground that it is not within the powers of this Act or on the ground that any requirement of this Act or of regulations made thereunder has not been complied with in relation thereto, he may, within six weeks from the date on which the notice required by the foregoing paragraph is first published, make an application for the purpose to the High Court".

    That is a familiar clause which appears in many statutes or schedules to them. Although the words appear to restrict the clause to cases of ultra vires or non-compliance with regulations, nevertheless the Courts have interpreted them so as to cover cases of bad faith. On this point the view of Lord Eadcliffe has been accepted (which he expressed in Smith v. East Elloe, 1956 A.C. at page 769)= In addition this Court has held that under this clause a person aggrieved - who comes within six weeks - can upset a scheme or order if the Minister has taken into account considerations which he ought not to have done, or has failed to take into account considerations which he ought to have done, or has come to his decision without any evidence to support it, or has made a decision which no reasonable person could make. It was so held in the Ashbridge case, 1965 1 W.L.R, 1370, and the Minister did not dispute it. It has been repeatedly followed in this Court ever since and never disputed by any Minister. So it is the accepted interpretation. But the person aggrieved must come within six weeks. That time limit has always been applied.

    That paragraph is succeeded by the following one, which is complementary to it:

    "Subject to the provisions of the last foregoing paragraph, a scheme or order to which this Schedule applies shall not, either before or after it has been made or confirmed, be questioned in any legal proceedings whatever, and shall become operative on the date on which the notice required by paragraph 1 of this Schedule is first published, or on such later date, if any, as may be specified in the scheme or order".

    So those are the strong words, "shall not .... be questioned any legal proceedings whatever". They were considered by the House of Lords in Smith v. East Elloe, 1956 A.C, 751. A lady brought an action to set aside an order for compulsory purchase. The six weeks had long since expired. She said the order was induced by the fraud of the clerk to the local council. The majority of the House held that her claim should be struck out against the council, but they allowed it to go on as against the clerk. Mr Payton told us that afterwards she even failed to prove any fraud against the clerk. So the decision of the House itself was based on a hypothesis which turned out to be unfounded - just like Donoghue v. Stevenson. But even so it is a decision that the paragraph does bar an action to quash an order for compulsory purchase even though it is put on the ground of fraud - if it is brought after the six weeks.

    Thirteen years later the House had to consider the Anisminic case, 1969 2 Appeal Cases, 147. It was on a very different provision. The Foreign Compensation Act, 1950 said that "The determination by the commission of any application made to them under this Act shall not be called in question in any court of law". The House held that that clause only applied to a real determination. It did not apply to a purported determination. They held that there had been no determination properly so called "by the Commission. So their decision could be called in question.

    Some of their Lordships seem to have thrown doubt on Smith v. East Elloe. See what Lord Reid said at page 170-171. But others thought it could be explained on the ground on which Mr Justice Browne explained it. Lord Pearce said;

    "I agree with Mr Justice Browne that it is not a compelling authority in the present case";

    and Lord Wilberforce said:

    "After the admirable analysis of the authorities made by Mr Justice Browne ... no elaborate discussion of authority is needed."

    I turn therefore to the Judgment of Mr Justice Browne. His Judgment is appended to the case. He put Smith v. East Elloe (at page 244) as one of the "Cases in which the inferior tribunal has been found guilty of bias, or has acted in bad faith, or has disregarded the principles of natural justice". He said of those cases:

    "It is not necessary to decide it for the purposes of this case, but I am inclined to think that such decisions are not nullities but are good until quashed (compare the decision of the majority of the House of Lords in Smith v. East Elloe, that a decision made in bad faith cannot be challenged on the ground that it was made beyond powers and Lord Radcliffe's dissenting Speech)".

    In these circumstances, I think that Smith v. East Elloe must still be regarded as good and binding on this Court. It is readily distinguished from the Anisminic case. The points of difference are these:

    First, in the Anisminic case the Act ousted the jurisdiction of the Court altogether. It precluded the Court from entertaining any complaint at any time about the determination. Whereas in the Smith v. East Elloe case the statutory provision has given the Court jurisdiction to inquire into complaints so long as the applicant came within six weeks. The provision is more in the nature of a limitation period than of a complete ouster. That distinction is drawn by-Professor Wade in his book on Administrative Law at pages 152-153, and by the late Professor de Smith in the latest edition of Halsbury's Laws of England, Volume I, paragraph 22, note 14.

    Second, in the Anisminic case, the House was considering a determination by a truly judicial body, the Foreign Compensation Tribunal, whereas in the Smith v. East Elloe case the House was considering an order which was very much in the nature of an administrative decision. That is a distinction which Lord Reid himself drew in Ridge v. Baldwin, in 1964 Appeal Cases, page 72. There is a great difference between the two. In making a judicial decision, the tribunal considers the rights of the parties without regard to the public interest. But in an administrative decision (such as a compulsory purchase order) the public interest plays an important part. The question is, to what extent are private interests to be subordinated to the public interest.

    Third, in the Anisminic case the House had to consider the actual determination of the tribunal, whereas in the Smith v. East Elloe case the House had to consider the validity of the process by which the decision was reached.

    So Smith v. East Elloe must still be regarded as the law in regard to this provision we have to consider here.

    I would add this: If this order were to be upset for want of good faith or for lack of natural justice, it could not to my mind be a nullity or void from the beginning. It would only be voidable. And as such, if it should be challenged promptly before much has been done under it, as Lord Radcliffe put it forcibly in Smith v. East Elloe, 1956 A.C, page 769: "But this argument is in reality a play on the meaning of the word nullity. An order" - and he is speaking of an order such as we have got here - "even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. And that brings us back to the question that determines this case: Has Parliament allowed the necessary proceedings to be taken?" The answer which he gave was ''No". That answer binds us in this Court today.

    Since the Anisminic case the Court considered the position in Routh v. Borough of Reading, unreported, 2nd December, 1970. Lord Justice Salmon, supported by Lord Justice Karminski and Lord Justice Cairns, held that Smith v. East Elloe was of good authority, even after the Anisminic case. In Scotland, too, it has been applied, in Hamilton v. Secretary of State for Scotland, reported in 1972 Scots Law Times, page 233.

    Looking at it broadly, it seems to me that the policy underlying the statute is that when a compulsory purchase order has been made, then if it has been wrongly obtained or made, a person aggrieved should have a remedy. But he must come promptly. He must come within six weeks. If he does so, the Court can and will entertain his complaint. But if the six weeks expire without any application being made, the Court cannot entertain it afterwards. The reason is because, as soon as that time has elapsed, the authority will take steps "to acquire property, demolish it and so forth. The public interest demands that they should be safe in doing so. Take this very case. The inquiry was held in 1973. The orders made early in 1974. Much work has already been done under them. It would be contrary to the public interest that the demolition should be held up or delayed by further evidence or inquiries. I think we are bound by Smith v. East Elloe to hold that Mr Ostler is barred by the statute from now questioning these orders. They ought to be stopped at this moment. I would allow the appeal accordingly.

    LORD JUSTICE GOFF: I agree. As long ago as 1965 or possibly even earlier, it was conceived that it was necessary to have a relief road in the town of Boston, and in 1965 the line of that road was settled. It is marked with a thick red line on the plan before us. In July 1972 the matter was carried further when proposals were published for the necessary compulsory purchase of the land required to make that road (coloured pink on our plan) and other lands required for access (coloured green). The proposals included stopping up a number of highways, and where that was to be done is indicated on our plan by blue colouring. Objections had to be lodged by the 28th October, 1972. There were a number of objections, and principally from some people called Bateman, who owned property near Craythorne Lane.

    An inquiry was held on the 11th and 12th September, 1973 and, as the result of that, in May 1974 the proposals were confirmed and the necessary compulsory purchase order and stopping up orders became effective.

    Very soon after that, in July 1974, a proposed supplementary compulsory purchase order was published which provided for the widening of Craythorne Lane, coloured orange on our plan, as a means of access to the green land, and so thereby to the new highway.

    This involved acquiring part of the Respondent's property for demolition so that Craythorne Lane could be widened. He objected and an inquiry was held, which lasted four days, from the 12th to the 20th intermittently of December 1974, and again the proposal was approved by the Minister, this time on the 12th July, 1975.

    Mr Ostler was present at the December inquiry and he urged reasons why his land should not be taken, and proposed alternatives; for example, that the means of access should be through Spayne Lane. All his points were heard and decided against him, and he raises no objection to that order. He complains that he wanted at the December inquiry to raise objections to the original proposals which had been confirmed in May 1974, but that the Inspector would not allow him to do so because that order had become final. He did not object at that time, and he says that that was because the plans gave no indication that his land would be affected. He now wishes to challenge the 1974 order and he has moved for a writ of certiorari for that purpose.

    His case is that he has discovered two things: first, that there was a secret agreement between the local authority and Batemans, guaranteeing that the 1972 proposals would not be put into force until Craythorne Lane had been acquired as the relevant means of access; second, that in August 1973 the Minister, in exercise of powers conferred upon him by Section 57, subsection (1), of the Highways Act, 1971 transferred to himself the powers of the local authority over Craythorne Lane as a highway affected by the construction or improvement of a trunk road - that is the new road coloured pink - the effect of which was, he says, that the local authority and the Minister agreed that access should be through Craythorne Lane. He says that had he known about the Craythorne Lane proposals, he would have objected, and he alleges that there was fraud or mala fides because those proposals were suppressed and he was not allowed to know anything about them.

    It is fair to say that the facts are in dispute, and if the matter went further, one would have to ascertain precisely what had happened. The local authority say indeed that Mr Ostler was consulted before the Minister's decision about the Craythorne Lane proposals and raised no objection, subject to the price being right.

    But for the purposes of the present interlocutory application, we have to assume that a case of fraud or mala fides could be established. The question then arises whether the statutory provisions to which my Lord has referred bar any such case.

    In the Smith v. East Elloe case the relevant provisions were in fact in paragraphs 15 and 16 of Schedule I to the Acquisition of Land (Authorisation Procedure) Act, 1946, but with one odd little exception they are identical with those to be found in the Second Schedule to the Highways Act of 1959} which applies in this case, paragraphs 2, 3 and 4. The oddity to which I have referred is that what is now contained in paragraphs 2 and 3 was combined in the old paragraph 15, and paragraph 16 opened with the words "Subject to the provisions of the last foregoing paragraph". Those words have been taken into paragraph 4 of the 1959 Act, although the preceding provisions are now split up into two paragraphs, and the reference should really be to paragraph 2, not paragraph 3, or, at any rate, to both of them. But I think it must be construed as applying to paragraphs 2 and 3, and, therefore, the provisions considered in Smith v. East Elloe are identical for all practical purposes with those in the Highways Act.

    In my judgment, in Smith v. East Elloe the majority did definitely decide that those statutory provisions preclude the order from being challenged after the statutory period allowed, then by paragraph 15 and now by paragraph 2, and we are bound by that unless the Anisminic case has so cut across it that we are relieved from the duty of following Smith v. East Elloe and, indeed, bound not to follow it.

    That raises a number of problems. With all respect to the learned Master of the Rolls and Professor Wade, I do myself find difficulty in distinguishing Anisminic, on the ground that in that case there was an absolute prohibition against recourse to the Court, whereas in the present case there is a qualified power for a limited period, because the majority in the Smith case said, either that fraud did not come within paragraph 15, so that, in effect, it was an absolute ouster, or that it made no difference to the construction if it did.

    Nevertheless, it seems to me that the Anisminic case is distinguishable on two grounds. First, the suggestion made by Lord Pearce at page 201 of the report that Anisminic dealt with a judicial decision, and an administrative or executive decision might be different. I think it is. It is true that the Minister has been said to be acting in a quasi judicial capacity, but he is nevertheless conducting an administrative or executive matter, where questions of policy enter into and must influence his decision.

    I would refer in support of that to a passage from the Speech of Lord Reid in the well known case of Ridge v. Baldwin, at page 72. I need not read it. It sets out what I have been saying.

    Where one is dealing with a matter of that character and where, as my Lord has pointed out, the order is one which must be acted upon promptly, it is, I think, easier for the Courts to construe Parliament as meaning exactly what it said, that the matter cannot be questioned in any Court, subject to the right given by paragraph 2, where applicable, and where application is made in due time, then where, as in Anisminic, one is dealing with a statute setting up a judicial tribunal and defining its powers and the question is whether it has acted within them. I think that is supported by the passage in the Speech of Lord Reid in the Anisminic case at page 170, where he said:

    "But I do not think that it is necessary or even reasonable to construe the word 'determination' as including everything which purports to be a determination but which is in fact no determination at all"

    The second ground of distinction is that the ratio in the Anisminic case was that the House was dealing simply with a question of jurisdiction, and not a case where the order is made within jurisdiction, but it is attacked on the ground of fraud or mala fides. There are, I am fully conscious, difficulties in the way of that distinction, because Lord Somervell in the Smith v. East Elloe case, at page 771, in his dissenting Speech, said that fraud does not make the order voidable but a nullity. Lord Reid said the same in the Anisminic case at page 170; and at page 199 Lord Pearce equated want of natural justice with lack of jurisdiction.

    Nevertheless, despite those difficulties, I think there is a real distinction between the case with which the House was dealing in Anisminic and the case of Smith v. East Elloe on that ground, that in the one case the determination was a purported determination only, because the tribunal, however eminent, having misconceived the effect of the statute, acted outside its jurisdiction, and indeed without any jurisdiction at all, whereas here one is dealing with an actual decision made within jurisdiction though sought to he challenged.

    It cannot he gainsaid that some of the Speeches in Anisminic do appear to cast doubts upon the correctness of the decision in Smith v. East Elloe, but it certainly was not expressly overruled, nor did any of their Lordships, as I see it, say that it was wrong. There are substantial differences, such as my Lord and I have indicated, between the two cases, and it seems to me that Smith v. East Elloe stands, is binding on this Court, and is a decision directly in point.

    I would therefore allow the appeal on that ground, and I am fortified in this conclusion by what Lord Justice Cairns said in the unreported case of Routh at page 12 of the transcript before us. He said this:

    "It is a harsh rule, but it is expressly laid down in paragraphs 15 and 16 of Schedule I to the Acquisition of Land (Acquisition Procedure) Act, 194-6, and those paragraphs have been strictly interpreted by the House of Lords in the East Elloe case. By that decision we are bound, and the language of their Lordships in that case is, in my view, sufficient to cover the present case. A suggested possible loophole did emerge, not, I must say, from Mrs Routh's submissions, but from Mr Glover, who suggested that a possible distinction that Mrs Routh might be seeking to make was between a void and a voidable order. I think that the language of the Members of the House of Lords in the East Elloe case does cover both situations; and if further confirmation is needed it is to be found in the passage from the Judgment of Lord Justice Jenkins in the case of Woollett v. Minister of Agriculture to which Lord Justice Salmon has referred".

    There is no mention in any of the Judgments of the Anisminic case, and therefore one must proceed with a little caution, but it is difficult to imagine that their Lordships were unaware of it or overlooked it, and the passage which I have read does seem to be, expressed no doubt in better words than my own, exactly what I have been saying.

    For these reasons, as I have said, I would allow the appeal.

    LORD JUSTICE SHAW: I agree that this appeal should succeed, and I would respectfully adopt the reasons given by my Lord the Master of the Rolls. The present case falls fairly and squarely within the decision determined by the majority opinion of the House of Lords in Smith v. East Elloe. If that decision survives notwithstanding what was said in Anisminic, it follows that the restriction or limitation imposed by paragraphs 2-4 to the Second Schedule to the Highways Act, 1959, and paragraphs 15 and 16 of the First Schedule to the Acquisition of Land (Authorisation Procedure) Act, 1946 precludes any resort to the Court, whether by way of certiorari or otherwise, with the object of challenging the validity of the order in question on any ground whatsoever after the prescribed period of six weeks has expired.

    It seems to me that the case of Anisminic can be distinguished on two or perhaps three grounds: first, that the statutory order considered in that case, namely, the Foreign Compensation Order, prescribed the basis on which the Foreign Compensation Commission were to found a determination as to whether the substance of a claim was to be treated as established. This rendered the question of whether or not there had been a valid determination at all open to review in circumstances where it could be shown that the Commission Proceeded on a wrong view of the law.

    Secondly, the determination considered in Anisminic could not in any circumstances have been a valid determination so that it was void ah initio, while the order in the present case, as in East Elloe, was one which could be arrived at as a proper order.

    Lastly, in the East Elloe case it was the validity of the compulsory purchase order that was in question and not any ultimate question of payment of compensation, which, in the last resort, remains as a means of affording redress to a person who has been dispossessed against his will.

    I would hold that the respective provisions of the Schedules to the Highways Act, 1959, and the Acquisition of Land (Authorisation Procedure) Act, 1946, operate to make that order wholly immune from any challenge whatsoever save within the limited period prescribed, and accordingly I would allow the appeal.

    Order: Appeal allowed; application for certiorari dismissed; no order for costs; leave to appeal refused.

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