R v Somerset County Council, Ex parte Fewings (Fewings, Ex parte)

A local authority managing land has no private owner’s unfettered discretion. It must exercise its powers for a purpose authorised by positive law and direct itself to the statutory objective.

Under Local Government Act 1972, section 120(1)(b), a decision may not rest simply on councillors’ personal moral views. Ethical and animal-welfare considerations are not necessarily irrelevant, but they must be related to a judgment that the decision benefits the authority’s area. A decision is unlawful where councillors proceed as though ownership alone gives them free choice and fail to address that statutory question.

Somerset County Council owned Over Stowey Customs Common, a small but strategically placed part of the area hunted by the Quantock Staghounds. The council resolved, as landowner, to ban deer hunting with hounds on the common. The majority of councillors acted because they considered hunting cruel and morally repugnant.

Laws J quashed the resolution, holding that the council had relied on impermissible moral considerations and, alternatively, had failed to consider deer management after an immediate ban: [1995] 1 All E.R. 513. The council appealed. The central issue was whether the resolution was a lawful exercise of the statutory power governing the acquisition and accepted management of council land.

1. Appeal dismissed by a 2–1 majority. The Master of the Rolls and Swinton Thomas LJ held that the resolution was unlawful. Simon Brown LJ dissented.
2. The common basis of the majority was that a local authority may act only under positive legal authority. Section 120(1)(b) of the Local Government Act 1972, accepted by the parties as governing management of the common, required the council to act for the benefit, improvement or development of its area. The council had not directed itself to that statutory purpose. It treated itself as having the freedom of a private landowner and acted on personal moral opposition to hunting without identifying the benefit which a ban would confer on the area.
3. The Master of the Rolls held that Laws J had construed the statutory language too narrowly. Ethical and animal-welfare arguments could be relevant to the benefit of an area. There was nevertheless a material difference between personal disapproval of an activity and a community-based judgment that prohibition would benefit the area. On the evidence, the councillors had not made the latter judgment.
4. Swinton Thomas LJ agreed that the council had failed to consider and apply its statutory restraint. He also considered that a ban imposed simply because hunting was morally repugnant did not fall within section 120(1)(b). He regarded the issue as one properly for Parliament unless the council could connect its decision to the statutory purpose.
5. The majority rejected Laws J’s alternative ground. If a ban were otherwise lawful, the council did not need immediately to settle future herd-management arrangements; its consequences could be assessed and the ban later revoked if necessary.
6. The Master of the Rolls did not decide whether the council could instead have pursued a by-law under section 90 of the National Parks and Access to the Countryside Act 1949. He treated that as unnecessary and undesirable to resolve.
7. Simon Brown LJ, dissenting, considered the cruelty argument necessarily relevant to the public good and benefit of the area. In his view the councillors were entitled to give it decisive weight and had lawfully done so.

• Court of Appeal (Civil Division): dismissed the council’s appeal and upheld the quashing of the hunting ban.
• High Court (Queen’s Bench Division): Laws J quashed the council’s resolution: [1995] 1 All E.R. 513.