Wild Justice & Anor, R (on the application of) v Natural England

A judicial review court should generally decide whether past or proposed public-authority action was lawful, rather than answer a hypothetical question detached from any actual decision. An advisory declaration may be available where there is a good reason in the public interest, particularly for a short and general point of statutory construction. That jurisdiction is not excluded by the highly likely: not significantly different test in section 31(2A) of the Senior Courts Act 1981. It remains inappropriate where the question rests on a false factual premise, does not determine the lawfulness of any action, is fact-sensitive and case-specific, and is substantially uncontested. Taking a legally irrelevant consideration into account is not automatically unlawful; materiality remains necessary.

The claimants challenged Natural England’s decision to grant supplementary badger control licences under section 10(2)(a) of the Protection of Badgers Act 1992. They initially alleged that five matters had been taken into account as legal irrelevancies. Evidence established that they had not been considered, and that issue was abandoned.

The claimants instead sought an advisory declaration answering whether those matters would have been irrelevant considerations if they had been taken into account. The parties substantially agreed on the answer. The central issue was whether the Administrative Court should nevertheless determine that hypothetical question and grant declaratory relief.

1. Advisory declaration refused. The claimants’ proposed declaration was declined. The question adopted a hypothetical and factually false premise: Natural England had not taken the five considerations into account, and no proposed decision involving them was before the court.
2. The court can in principle determine an agreed question and grant an advisory declaration where there is a good reason in the public interest. Section 31(2A) of the Senior Courts Act 1981 is not a jurisdictional bar. Its purpose and mischief differ from the considerations governing advisory relief.
3. That jurisdiction is exceptional in practical operation. Courts do not generally decide hypothetical questions. The judicial review jurisdiction is directed to determining the lawfulness of public-authority action or proposed action. Taking a legal irrelevancy into account does not automatically make a decision unlawful, because common-law materiality remains relevant and is distinct from both discretionary refusal of relief and the statutory highly likely: not significantly different test.
4. The relevant features pointed decisively against relief. The question was not a short point of pure statutory construction. It required a fact-sensitive and case-specific assessment, did not resolve the related issues concerning section 16 directions under the Natural Environment and Rural Communities Act 2006, and was not materially contested by the parties. The grant of permission for judicial review did not require the court to answer a question outside the pleaded claim.
5. The claimants therefore failed to establish a good reason in the public interest or a real practical need for the declaration. There was no order as to costs, balancing the responsible bringing of the claim, Natural England’s late change of position, the parties’ conduct, and the failed pursuit of the advisory declaration.