R v The Secretary of State for the Environment, ex p. Ostler

A statutory provision may make a compulsory purchase or highway order challengeable only within a specified period and then final. Under the Highways Act 1959, the six-week application period covers bad faith, fraud, improper considerations, lack of evidence, unreasonableness and other recognised grounds. Once it expires, the order cannot be questioned in legal proceedings, including for want of natural justice.

This qualified limitation is distinct from an absolute ouster clause governing a purported determination by a judicial tribunal. An administrative order is at most voidable and must be challenged promptly.

The appeal arose from an interlocutory order of the Divisional Court concerning compulsory purchase and highway orders for a relief road. The respondent sought to challenge earlier orders nearly two years after they were made, alleging a secret assurance, fraud, bad faith and denial of natural justice. He argued that he had not objected earlier because he did not know that access arrangements would affect his property.

The six-week period for challenging the earlier orders had expired, and substantial demolition and acquisition had occurred. The Divisional Court considered that further evidence was required because the authority of the earlier decision in Smith v. East Elloe Rural District Council might have been affected by Anisminic v. Foreign Compensation Commission. The central issue was whether the statutory finality provisions barred the challenge.

Appeal allowed. All three judges held that the statutory time limit barred the respondent’s proposed challenge.

1. Under paragraphs 2–4 of the Second Schedule to the Highways Act 1959, an aggrieved person may challenge a scheme or order within six weeks. The accepted interpretation permits recognised public law challenges, including bad faith, improper considerations, failure to consider relevant matters, lack of supporting evidence and unreasonable decision-making. After six weeks, the order cannot be questioned in legal proceedings.
2. The Master of the Rolls held that Smith v. East Elloe Rural District Council 1956 Appeal Cases, page 736 remained good and binding authority. The statutory provision was a limitation period coupled with a finality rule, rather than the complete jurisdictional ouster considered in Anisminic v. Foreign Compensation Commission 1969 2 Appeal Cases, page 147.
3. Lord Justice Goff agreed that Anisminic was distinguishable. It concerned a judicial tribunal and a purported determination outside jurisdiction. The present case concerned an administrative order made within jurisdiction and challenged for fraud or mala fides. The corresponding provisions of the Acquisition of Land (Authorisation Procedure) Act 1946 had been construed in the same way in Smith.
4. Lord Justice Shaw adopted the Master of the Rolls’ reasoning. He emphasised that the order could have been properly made, unlike the purported determination in Anisminic, and that the statutory provisions made it immune from challenge after the prescribed period. The Master of the Rolls further explained that an order affected by bad faith or want of natural justice would be voidable rather than void from the beginning, but it remained effective unless promptly quashed.

The application for certiorari was dismissed. There was no order for costs, and leave to appeal was refused.

1. Court of Appeal (Civil Division): [1976] EWCA Civ 6. Appeal allowed. The respondent was barred from challenging the earlier orders after expiry of the six-week period.
2. Divisional Court: Considered that further evidence should be taken because Smith v. East Elloe Rural District Council might have been affected by Anisminic v. Foreign Compensation Commission.