PART 4: REMEDIES FOR UNLAWFUL AND IRREGULAR

ADMINISTRATIVE ACTION

12 Administrative Remedies

12.1 Administrative and Judicial Remedies

Contrasted
A remedy can be described as an administrative remedy where it is provided
for by statute and does not involve recourse to a court of law. Whatever the sta-
tus of the remedy, be it administrative or judicial, the law provides such a facil-
ity for the purposes of enabling an individual to challenge administrative
action. The nature and effect of any such challenge allowed by a remedy will
depend on a wide range of factors. In the case of the administrative remedy, it is
usual to find that the challenge available through the remedy permits a com-
plete re-examination of a decision or some other administrative action. In the
case of judicial remedies, which are the subject of the next chapter, the law
seeks to ensure that administrative action takes place according to the require-
ments of the law. If it does not then the individual who is aggrieved and has a
sufficient interest in the matter, eg as the person directly affected by a decision,
should be able to apply to the appropriate court for one of the judicial remedies.
Such a judicial remedy is likely to be available once any administrative reme-
dies have been exhausted. Where, for example, a local planning authority has
served an enforcement notice under the Town and Country Planning Act alleg-
ing unlawful development without planning permission there is an appeal
against the notice to the Secretary of State for the Environment and a further
appeal on a point of law to the High Court against his appeal decision.
Sometimes there may be a limit placed on any challenge to the validity of a
decision taken by an administrative agency on an appeal through the use of an
ouster clause of the sort described in Chapter 11. Such a clause might state that:
‘... the validity of any decision shall not be questioned in any proceedings what-
soever’ and appears to make the decision final and conclusive. However,
important decisions in cases like Anisminic v Foreign Compensation Commission
(1969) which are dealt with in Chapter 11 show that the decision of the adminis-
trative agency concerned may be final and conclusive in relation to its intra vires
facts and merit but not on matters of law. Because it is the High Court which is
the final arbiter on matters of law and legality, there is always the possibility

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that the decision’s legality can be challenged through one of the statutory or
non-statutory remedies to be described in the next chapter. It is not unusual to
find that Parliament has already addressed itself to the question of the status of
the decision which emerges from an administrative remedy like an appeal. It
has been seen in Chapter 5 that the decisions of some administrative tribunals
are subject to a statutory appeal on a point of law to the High Court. A decision
of the tribunal affected by an error of law can be taken to the High Court
although one of the non-statutory remedies, certiorari, could be employed to
quash the decision where the error was considered so fundamental as to render
it ultra vires. In some instances and particularly in relation to decisions of the
Secretary of State for the Environment in the area of town and country planning
and compulsory purchase, it will be seen in the following chapter that an ouster
clause often protects the decision while statutory provision is made for the lim-
ited terms on which the High Court can review its legality.

12.1.1 Varieties of administrative remedy

The administrative appeal is probably the best-known of the administrative
remedies. There are two categories of appeal which are of considerable practical
significance: appeals from decisions and other administrative action taken by
local authorities and appeals from the decisions of government departments.
Examples of these appeals are given in Chapter 4 on local government and in
Chapter 5 on administrative tribunals. In the case of local authorities, one of the
best-known appeals is that which is available to an applicant for planning per-
mission where the local planning authority has refused planning permission or
granted it subject to conditions. The appeal is to the Secretary of State for the
Environment who is at liberty to look at the case afresh (perhaps with the help
of a statutory inquiry) so that he could, for example, impose conditions which
were even more stringent than those appealed against. The procedural require-
ments for these appeals are outlined in Chapter 9. Appeals from some local
authority decisions go to administrative tribunals, as with disputes concerning
Council Tax valuations, which go to the local valuation tribunals. Many appeals
from decisions of government departments relate to welfare rights where the
usual practice, as seen in Chapter 5, is to give an appeal against an adverse deci-
sion to an appropriate tribunal. Whatever the destination of an appeal, statutory
rules of procedure will set out the detailed requirements for the process indicat-
ing the nature of any documentation required, time limits to be observed and so
on. In some cases there are very distinct procedural requirements arising from
an appeal, as in the case of appeals to the Social Security Appeal Tribunals
where the initial decision is automatically reviewed when the appeal is notified.
In general, the administrative appeal stands out as the most common rem-
edy for the person who is in some way affected by administrative action. There
are, of course, other, more limited remedies for the individual such as the audit
procedures dealt within Chapter 4 and the facilities for complaint to the appro-

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priate minister in central government concerning the alleged failure of an

administrative agency to undertake its statutory responsibilities. This latter
facility will be dealt with later in the chapter. In addition, the individual can
complain of maladministration which has caused him injustice at the hands of
any one of a variety of different administrative agencies. Such a complaint of
intra vires maladministration will go to one of the ombudsmen and this impor-
tant remedy is described in Chapter 15. In any description of administrative
remedies it should not be forgotten that such remedies may be available to
agencies within a system of administration in order to permit some control of
other agencies. Again, there are references to remedies such as directions and
other default powers in Chapter 4 in the context of central government’s control
of local authorities as well as in Chapter 6.

12.2 Administrative Remedies and the Question of

Legality
At the beginning of this chapter it was seen that where any challenge to a deci-
sion or other action is through an administrative remedy such as an appeal,
there can be a complete re-examination of the decision. In other words, all the
intra vires merits of the decision can be re-appraised and, if necessary, the
appeal body can substitute its own decision for that made originally and which
has now been brought to appeal. However, when the original decision is made
by the administrative agency it may be suspected, on the basis of legal advice,
that the legality of the decision is in doubt. It may be suspected, for example,
that the decision is, in fact, ultra vires. For the individual who is affected by the
decision there may be something of a dilemma. The decision may be made in
respect of that activity from which he proposes to earn his livelihood. The
licensing authority may have granted a licence by its decision but imposed per-
haps onerous conditions. Should the individual pursue an administrative
appeal in the hope that the onerous conditions might be lifted, or should he
attempt to challenge the legality of the decision as a whole by applying to the
High Court for one of the judicial remedies in administrative law? If the latter
course is possible and the High Court found that the decision was ultra vires, that
decision would probably be quashed or declared a nullity, so enabling the indi-
vidual to start all over again with a fresh application to the licensing authority.

12.2.1 Administrative versus judicial remedies

For the individual faced with the dilemma described above there is the vital
question of whether, in law, it is possible to go for the judicial remedy in the
High Court where there is an administrative remedy already provided. The
answer to this question emerges from the decision in R v Hillingdon London
Borough Council, ex p Royco Homes Ltd (1974) where the administrative remedy

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was the appeal to the Secretary of State for the Environment against a condi-
tional grant of planning permission by a local planning authority while the judi-
cial remedy was an order of certiorari from the High Court to quash the decision
by reference to ultra vires conditions. The crucial point was whether certiorari
was available or whether the High Court would have to admit that the only
remedy was the administrative remedy provided in this case by the Town and
Country Planning Act. The Act provides that the applicant who is aggrieved by
the decision of a local planning authority on an application for planning permis-
sion ‘... may by notice ... appeal to the Secretary of State’. On the face of it, the
word ‘may’ seems to indicate that there is an option so that the aggrieved appli-
cant does not necessarily have to take that route. It was decided by the High
Court that the judicial remedy, ie in this case, the order of certiorari, would be
available in a ‘proper’ case, where the only issue (as in this case) is the legality
of a decision. Consequently, in any case where the only complaint about a deci-
sion is its legality, eg where there is an error of law on the face of the record, the
administrative remedy can be ignored in favour of the judicial remedy from the
High Court. The then Lord Chief Justice, Lord Widgery, giving judgment sum-
marised the position by saying that:
Whether the issue between [the parties] is a matter of law or fact, or policy or
opinion, or a combination of some or all of those, one hearing before the
Secretary of State has jurisdiction to deal with them all, whereas of course an
application for certiorari is limited to cases where the issue is a matter of law ...

12.2.2 Administrative and judicial remedies serving the

same purpose
It has been seen in the previous section that the two types of remedy available
may not necessarily serve the same purpose although there would have been no
objection to an appeal to the Secretary of State by Royco Homes under s 36.
Indeed an administrative appeal is likely to be the cheaper option unless the
parties become embroiled in an expensive public inquiry into the issues before
the final decision is made. Had Royco Homes appealed against the conditions
attached to its planning permission, a finding by the Secretary of State that they
were ultra vires would not have necessitated a dismissal of the appeal in view of
the fact that the Secretary of State can look at the application afresh and substi-
tute his own decision (Robert Hitchens (Builders) Ltd v Secretary of State for the
Environment (1979)). In another case from the background of town and country
planning, Pyx Granite Co Ltd v Minister of Housing and Local Government (1959),
the company sought a declaration (one of the judicial remedies to be described
in the next chapter) that their quarrying operations could be carried out without
planning permission because they were authorised by a ‘private Act of
Parliament’ (the Malvern Hills Act 1924) for the purposes of a statutory order
made under the Town and Country Planning Act. It was decided by the House
of Lords that it could grant the declaration sought. One member observed that:

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‘It is surely proper that in a case like this involving ... difficult questions of con-
struction of Acts of Parliament, a court of law should declare what are the rights
of the subject who claims to have them determined’ (Viscount Simonds). In this
case, the court’s declaration served the same purpose as the administrative rem-
edy. This remedy, provided for in what is now s 64 of the Town and Country
Planning Act 1990, provides than any person who wishes to ascertain whether
proposed activities on land amount to ‘development’ requiring planning per-
mission ‘... may ... apply to the local planning authority to determine that ques-
tion’. In other cases where there is no overlap so that the respective remedies
serve different purposes the court will require that the administrative or any
other exclusive statutory remedy be followed, as in Barraclough v Brown (1897),
which was distinguished by the House of Lords as a different case in Pyx Granite.
In Barraclough the court was concerned with the statutory facilities which gave
the plaintiff an entitlement to claim his expenses arising from the recovery of
sunken vessels from the River Ouse. Such expenses were recoverable from a
magistrates’ court: this remedy, it was decided, was an exclusive remedy so that
the plaintiff could not obtain a declaration from the High Court in respect of the
validity of a claim, which was a matter entirely for the magistrates.

12.2.3 Exclusive administrative remedies

In the previous chapter reference was made to s 8 of the Education Act 1944 by
which a local education authority is obliged ‘... to secure that there should be
available for their area sufficient schools for providing full-time education’ suit-
able to the requirements of pupils. The statutory definition of such broad duties
is not uncommon: s 11 of the Water Act 1973 declared very broadly that: ‘It shall
be the duty of a water authority to supply water within their area.’ This broad
duty is now repeated in similar terms by the Water Industry Act 1991 in the
case of the privatised water companies. However, any alleged failure of an
administrative agency to undertake such a duty cannot be dealt with by means
of a judicial remedy such as mandamus, which would direct that a statutory duty
should be performed according to law. In many cases Parliament and the courts
have foreseen that these very broad duties depend for their performance on all
sorts of financial, economic and other variables. The Water Act 1989, for exam-
ple, contained many duties which are enforceable by the Director General of
Water Services and the Secretary of State through the service of provisional or
final enforcement orders. As a consequence, the courts have decided that such
duties (now consolidated in the Water Industry Act 1991) are not legally
enforceable directly, a conclusion which is often fortified by statutory provi-
sions which provide an alternative, exclusive remedy for those occasions when
there is a failure to perform the duty or, to use a technical legal expression, a
‘non-feasance’. Such a remedy is necessarily associated with default powers
exercisable by various ministers in central government departments as illus-
trated in a section of Chapter 4 dealing with this type of central government

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control. One example mentioned in this section came from the Education Act
1944, s 99 of which states that:
If [the Secretary of State] is satisfied, either upon complaint by any person
interested or otherwise, that any local education authority ... have failed to
discharge any duty imposed upon them by or for the purposes of this Act
[the Secretary of State] may make an order declaring the authority ... to be in
default in respect of that duty, and giving such directions for the purpose of
enforcing the execution thereof as appear ... to be expedient; and any such
directions shall be enforceable, on an application made on behalf of [the
Secretary of State], by mandamus.
It will be seen from this provision that only at the end of the special procedure
is there any possibility of enforcement by the law, but only through the
Secretary of State’s application for an order of mandamus where any directions
have not been complied with.

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