White & Anor v South Derbyshire District Council

An ultra vires administrative act is ordinarily void, but voidness is relative and the act may retain legal effects for particular purposes before it is set aside. A public authority cannot rely on the unlawfulness of its own administrative act to found a criminal prosecution, particularly where the act was not invalid on its face and other legal avenues were available. A site licence under section 3(3) of the Caravan Sites and Control of Development Act 1960 requires an actual planning permission or equivalent certificate in existence when the licence is issued. The Human Rights Act 1998 does not permit a clear statutory requirement for a permission to be granted to be replaced by a merely hypothetical entitlement.

The appellants were convicted by District Judge Jones at Derby Magistrates’ Court of permitting land to be used as a caravan site without a valid site licence, contrary to section 1 of the Caravan Sites and Control of Development Act 1960. Their predecessor had received a site licence in 2001, which was transferred to the appellants in 2008. It was accepted that no planning permission existed when the original licence was granted, although a certificate of lawful use and development would then have been obtainable. The central issues were whether the licence was invalid, whether its invalidity was apparent on its face, whether the Council could rely on its own unlawful act in prosecuting, and whether the Human Rights Act 1998 required a different construction.

1. Appeal allowed and convictions quashed. The Council had no power under section 3(3) of the Caravan Sites and Control of Development Act 1960 to issue the original licence because no relevant planning permission or equivalent certificate existed at the date of issue. That conclusion did not determine whether the appellants could properly be convicted.
2. The doctrine of ultra vires does not require every unlawful administrative act to be disregarded for every purpose. Although such an act is ordinarily void, its apparent validity may have legal consequences until the appropriate proceedings establish and set aside the invalidity. The court must consider the legal effect of the later act and the circumstances in which reliance was placed on the earlier act.
3. The Council could not rely on the unlawfulness of its own grant of the site licence to found this criminal prosecution. The authorities supported protection for persons who relied on the apparent validity of an administrative act. No authority established that a prosecuting public authority could use its own unlawful act in this way.
4. The licence was not invalid on its face. A reasonable reader would have needed to investigate the underlying legislation and the 1993 change to understand the alleged defect. The licence therefore could not simply be treated as a nullity for the purposes of the prosecution.
5. The Human Rights Act 1998 did not require a different result. Section 3 of that Act could not justify replacing the statutory requirement for permission to have been granted with a test based on whether permission would probably have been granted. The construction adopted in Balthasar v Mullane was not incompatible with the Convention rights.
6. The convictions were quashed. The order for costs below was replaced by an order that the appellants recover 50 per cent of their costs from central funds. The appellants received their costs of the appeal from the Council.

The judgment was an appeal by way of case stated from the decision of District Judge Jones at Derby Magistrates’ Court dated 20 May 2011. The Divisional Court allowed the appeal and quashed the convictions.