Legal challenge to Hobbiton District Councils plans

If Sam wishes to make a legal challenge to Hobbiton District Councils plans to hold a rock concert and new age gathering, then his best option will be through the doctrine of Judicial Review. One thing that needs mentioning is that because the Council are a public body they are also susceptible to the normal rules of contract and tort, but it seems unlikely that the council has breached any contract or commissioned any sort of tort.

Judicial Review is the mechanism that allows individuals to challenge the actions that are made by Ministers, Local Authorities or any other Public officer or body1 through the administrative court, a branch of the High Court. It is mainly based on the doctrine of Ultra Vires, which simply means 'Beyond the Powers'. It needs mentioning that not all forms of decisions are available for review, and a clear example of the powers that cannot be reviewed are that of an Act of Parliament.

It is believed that the courts can justify the control they can exercise over administrative authorities by referring to the implied, if not the express intent of parliament that public bodies must not exceed or misuse the powers conferred on them. It is further justifiable by the relevance of the Human Rights Act 1998, which makes it unlawful for a public body to act in a way that is incompatible with a "convention right"2.

Before Sam can seek leave for a Judicial Review Claim(now called 'permission'3) he must show that he has 'Sufficient Interest in the matter to which the application relates'4 as of cases such as Roy v Kensington and Chelsea and Westminster family practitioner committee5. This area may well be very unproblematic for Sam, as he is directly affected by the decision he will be disputing, therefore, Sam has locus standi to challenge the decision.

The second issue regarding a action for Judicial Review is whether the body who made the decision is subject to JR, in this case because it involves a Local Council, these are clearly susceptible to review, also when a body gets its powers in the form of statute, this normally suggests that their decisions are subject to JR. Another issue which sometimes arises in an action of JR is whether or not the decision made is susceptible to review, this again needs little discussion here as the decision affects the whole of Bagshot Row, rather than merely an individual.

In raising his case, Sam will need to be aware of the possible grounds of review that are available to him. The different grounds of JR were usefully categorised by lord Diplock in Council of Civil Services Unions v Minister for the Civil Service6(to be referred to as GCHQ case). He recognised three main categories as grounds for review, Illegality, Irrationality, Procedural impropriety, and a possible ground based on proportionality will continue to develop in the near future.

If a review of Hobbiton Council's decision will use illegality for a ground, and succeed then the court will find the councils decision illegal, void and invalid. The most relevant type of illegal action for Sam to base his claim on is that of 'Irrelevant Considerations', which is also seen as abuse of discretion. The Council must take into account all the considerations that are relevant to its decision and not take into account anything that is not relevant.

Roberts v Hopwood7 the local authority involved had failed to take into account the rate payers interests when changing the minimum wage, this was held to be illegal, therefore it may be seen that the failure of Hobbiton DC to take into account the interests of the Bagshot row residents (their privacy, peace and quiet, rights of access to the row etc) may amount to improper considerations, therefore the decision be deemed illegal.

Another occasion where the courts have found a decision to be illegal arises when a discretionary power is exercised for an improper purpose, R v Somerset County Council ex parte Frewins8 decision was held illegal because the Council in this scenario made a decision that expressed their distaste on a matter, and the decision wouldn't "benefit… " the residents as the statutory powers required decisions to. On this it seems like a valid argument for Sam that Hobbiton have made their plans to express their distaste to the residents of Bagshot Row by running a rock concert.

Also, it is unlikely that a court would agree that the rock concert will benefit the residents of Bagshot Row in any way. It is also possible the court will find that Saruman was using the discretionary power to please himself, and for his 'private purposes'. It was discussed in the case that powers are granted to public authorities to perform their 'duty to serve the public interest, not to please themselves with'. Considering this, it may well be that Saruman is purely pleasing himself, with his enjoyment of rock music rather than actually doing anything to 'benefit' Hobbiton, as its statutory powers say it should.

Some other possible arguments that may evolve from using illegality as a ground for review is that Hobbiton may be acting in excess of the powers conferred, because their statutory powers are in connection with highways, not suburban roads and residencies, therefore by applying their power to Bagshot row, they may well be acting illegally, as in Attorney General v Fulham Corporation9. It may be legal therefore for Saruman to close an actual highway to hold his rock concert, but to close a small suburban road may well be seen as an illegal act by Saruman.