R v Secretary of State for the Environment ex parte Ostler

Compulsory acquisition for road-widening purposes–Alleged secret agreement by Department’s officer with objectors about access–Neighbouring owner affected by agreement did not know about it, did not object and did not attack order within six weeks–Owner held to be caught by rule in Smith v East Elloe Rural District Council–Unable to challenge order–Smith’s case unaffected by the Anisminic appeal This was an appeal by the Secretary of State for the Environment from an order of the Queen’s Bench Divisional Court granting Mr Sydney Ostler, of Boston, Lincolnshire, leave to move out of time to quash two orders made by the appellant in March and May 1974 for compulsory acquisition of land for the purpose of constructing an inner relief road near Boston town centre. Mr H K Woolf (instructed by the Treasury Solicitor) appeared for the appellant, and Mr B A Payton (instructed by Eland, Hore & Paterson, agents for Jebb & Tunnard, of Boston) represented the respondent. Giving judgment, LORD DENNING said that the case raised12 the question whether the decision of the House of Lords in Smith v East Elloe Rural District Council [1956] AC 736 had been overruled or varied by the later decision in the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. The dispute arose out of a very important scheme for an inner relief road at Boston in Lincolnshire. In 1972 proposals were made for the acquisition of land for the new road, which was designed to take traffic away from the middle of the town. Objections had to be lodged by October 1972, and among those objections were some by firms who objected that the proposed access roads would affect their premises. The present respondent, Mr Ostler, claimed that as a result of representations made by them, those firms were assured by an officer of the Department of the Environment that they need not worry, because access was going to be by way of Crowthorne Lane, a road which adjoined the respondent’s own premises. The respondent now claimed that that was a secret agreement of which he had had no knowledge, and that as he had had no reason to object to the proposals at the time, he had failed to attend the inquiry into the scheme which was held in September 1973. The proposed roads which were the subject of the 1973 inquiry were approved in May 1974. Later that year a supplementary order was made whereby it was proposed that Crowthorne Lane should be widened and that this should be done in such a way that part of the respondent’s premises would be affected. There was an inquiry into those proposals in December 1974, which the respondent attended. At that inquiry he was told by the inspector appointed to conduct the inquiry that he could not go into the former scheme which had been the subject of the earlier inquiry. The inspector made his report after the inquiry, and his recommendations were approved in July 1975. That decision was not challenged by the respondent at that time. In December 1975 the respondent applied to the Divisional Court for an order of certiorari to quash, not the latest order, but the earlier orders, claiming that they were invalid. He claimed there was bad faith and a want of natural justice. The Divisional Court decided that the hearing should go forward, and from that decision the Secretary of State for the Environment now appealed, relying upon Smith and claiming that further inquiry into the proposals should not be permitted. The Highways Act 1959 gave the Secretary of State ample power to lay out roads, make new ones, stop up side roads and do all other ancillary works. The court had been told that 80 per cent of the land needed for the Boston scheme had been acquired and 90 per cent of the demolition work done for the new road. Was the scheme to be held up or set aside by reason of Mr Ostler’s application?  The relevant provisions, which were in much the same terms as those considered in Smith v East Elloe, were in Schedule 2 to the Act. Paragraph 2 said, ‘If a person aggrieved by a scheme or order . . . desires to question the validity thereof, or of any provision contained therein . . . he may, within six weeks from the date on which the notice [of the confirmation of the order] . . . is first published, make an application for the purpose to the High Court.’  Paragraph 4 said, ‘Subject to the provisions of the last foregoing paragraph, a scheme or order . . . shall not, either before or after it has been made or confirmed, be questioned in any legal proceedings whatever. . . .’  Those were strong words, ‘shall not be questioned in any legal proceedings whatever,’ and as he (his Lordship) read Smith, the majority of the House held that a clause in those terms, in a case where a woman had charged the clerk to the council with fraud, was of such effect that it barred an application to quash the order, even though it was on the ground of fraud. Smith v East Elloe had stood for 12 or 13 years; but it had been considered in the Anisminic case, where the House held that the provision of the Foreign Compensation Act 1950 that ‘the determination by the commission of any application made to them under this Act shall not be called into question in any court of law’ applied to a determination properly so called. It did not apply to a purported determination, so that where there had been no proper determination the decision could be called in question. There were some observations in Anisminic which appeared to throw some doubt upon Smith v East Elloe, but he (Lord Denning) saw grounds for distinguishing between the two decisions. Anisminic dealt with a complete ouster of the jurisdiction of the court, whereas in Smith, as in the present case, the court had ample powers to inquire into matters so long as the applicant came within six weeks. It was more like a limitation period than a complete ouster. Then the Anisminic case dealt with a judicial body, the Foreign Compensation Commission, whereas the case with which the present appeal was concerned concerned a quasijudicial tribunal. There was a world of difference between the two cases, because the public interest was very much in the picture when an administrative decision was in issue. In the case of an inquiry into roads, the decision was very much in the nature of an administrative matter. Although an administrative decision could be questioned by certiorari, there was a distinction between a judicial decision and an administrative decision. The policy of the legislature appeared to be that when road inquiries had been held and orders made the citizen had a remedy if he went to court within six weeks. Once the six weeks had expired the normal consequences of the making of an order ensued, and as a matter of public policy, could not be challenged weeks or years later. The 1959 Act was designed to bring to an early end all the objections that could be made to a scheme, for the good reason that in the public interest, once a scheme had been approved and a compulsory purchase order made much had to be done to implement it, and objections could not be left on one side to be dealt with perhaps years later. If a scheme was to be set aside it ought to be done at once. Mr Ostler was seeking to challenge the result of the 1973 inquiry when much had already been done under it. The court was bound by Smith v East Elloe, and the appeal should be allowed. Agreeing, GOFF LJ said that there were two grounds on which Anisminic was distinguishable from East Elloe. First a judicial decision and an administrative or executive decision might be different. Though it had been said that a Minister acted in a quasi-judicial capacity, he was nevertheless conducting an administrative or executive inquiry where questions of policy came in and must influence his decision. Secondly, the ratio in Anisminic was on a question of jurisdiction, where the tribunal, however eminent, had misconceived the effect of the Act and acted outside its jurisdiction; whereas in the present case, one was dealing with an actual decision made within the jurisdiction but attacked on the ground of fraud or mala fides. It could not be gainsaid that some of the speeches in Anisminic did appear to cast doubt upon East Elloe, but it was certainly not expressly overruled, nor did any of their Lordships say that it was wrong. So it stood as a decision directly to the point, and the appeal should be allowed. Also agreeing, SHAW LJ said that the case fell squarely within Smith v East Elloe. If that decision had survived Anisminic, which he thought it had, it followed that any challenge to the 1973 inquiry whether by certiorari or otherwise, was precluded, and the appeal should be allowed. Leave to appeal to the House of Lords was refused.