A Judicial Review Analysis In The Context Of Flood Prevention

Introduction

In the English constitutional and administrative law, judicial review is supplementary to principle of parliamentary sovereignty; the common law allows judicial review of the administrative action under the doctrine of ultra vires to see if the executive action aligns with the statutory provisions. The Civil Procedure Rules, Part 54 contain the rules for judicial review. A Part 8 application is available for an individual who wishes to move the High Court for judicial review into an administrative action. In the following sections, the essay will discuss the possible grounds under which lawfulness of the decisions of the administrative authority with relation to decisions taken for Penny, Jacob and Bethany can be challenged under judicial review, including options for those seeking uk dissertation help.

Penny

The issue with relation to Penny is whether the decision of the independent commission to not build river walls need for preventing future flooding can be challenged under judicial review.

Standing

Penny is the owner of a property affected by the order of the independent commission. As such, she has standing.

Scope

The independent commission is a public body, and this is the body which made the decision in this case.

Grounds

Penny can argue that the decision of the independent commission is irrational. Irrationality or perversity of the decision can be challenged on the basis of Wednesbury principles, which provide that the executive decision of an authority can be challenged if it is such that no properly directed body would make it. In the GCHQ case the court held that illegal, irrational, and procedurally improper orders of the executive are not to be upheld.

The Flood Prevention Act 2015, allows the independent commission to assess the threat to a community from flooding and providing government support. A community can be deemed to be at at ‘high risk of flooding’ under Section 2, and provided supports in the form of purchase of sandbags for residents, the building of sea walls, drain and sewer repairs, and ‘any other flood prevention measure where reasonable’ under Section 4. Despite the fact that ‘Twilight Valley’ has been flooded every year since 2000 and significant damage to residential houses closest to the river have occurred, the commission only decides to purchase extra sandbags for residents and not construct river walls. The commission is authorised to construct the river walls under Section 4. Despite the threat assessment, the commission’s decision is not responsive to the level of the threat, making it irrational. This can be established by applying the Wednesbury principles as explained in GCHQ, where it was held that a decision is irrational where it defies logic or accepted moral standards. Even though there is seemingly an ouster clause in Section 2, the judiciary may still allow judicial review because the clause does not clearly and expressly bar judicial review; it merely says that the decision of the commission is final.

Remedies

In this case, the remedy in the form of a quashing order may be asked for by Penny.

Jacob

The issue relevant to Jacob is whether the order of the commission is subject to judicial review on the ground that the decision was procedurally improper.

Standing

Jacob’s standing is unclear because he is a business owner Sunny Harbour, whose rights are not specifically affected by the order.

Scope

The commission is a public authority and comes within the scope for judicial review.

Grounds

Procedural impropriety relates to the failure to observe basic rules of natural justice or the failure to act with procedural fairness towards those affected by the decision. The test for bias was explained by the House of Lords in Porter v Magill, where it observed that bias can be determined when a fair minded and informed observer can conclude that the facts indicate a real possibility of bias. Bias itself can be either presumed or apparent. Presumed bias occurs where the decision maker has some financial interest in the matter or where he is the member of a group that is party to the case. Bias may be imputed where the judge in the matter has some interest in the matter which may lead to his being biased in his decision making.

In the case related to Jacob, the chair of the independent commission has shares in the company that manufactures both the sea walls and the bespoke flood gates. The commission has ordered the construction of extensive sea walls and bespoke flood gates for the doors of all property located along the sea front. This has been done after assessing that Sunny Harbour is at ‘high risk of flooding’ under Section 2. Section 3 is applicable here only if flooding in that area would pose ‘a substantial risk to life and property’. The facts indicate that the flooding in Sunny Harbour three years ago was the result of damage to the out-dated sewer system and it caused minimal damage. Therefore, Section 2 is not applicable to Sunny Harbour. The decision maker (chair of commission) has shares in the company that manufactures both the sea walls and the bespoke flood gates. This leads to presumed bias, which can be used as a ground for judicial review in this case.

Remedies

Jacob may ask for a prohibiting order if he can prove his standing.

Bethany

The issue with reference to Bethany is whether the decision of the Secretary of State to refuse compensation is subject to judicial review.

Standing

Bethany’s property was damaged due to floods. She has standing.

Scope

The Secretary of State is a public authority with the power to give compensation. His order can be subject to judicial review.

Grounds

Section 5 gives discretionary power to the Secretary of the State to decide which cases can be provided compensation for damage due to flooding. However, Section 5 is applicable for the purpose of giving compensation even if the flooding is in a community not deemed to be at ‘high risk of flooding’. Bethany’s offices were damaged by flood water but the Secretary of State has refused to refer the complaint to the commission on the grounds of discretion and the community not being at ‘high risk of flooding’. Generally speaking, courts in England and Wales treat the issue of executive discretion with deference. However, in this case when the legislation allows reference of compensation cases to commission regardless of whether the flooding happened in high risk areas or not, the Secretary of State refusing to refer the case will amount to an illegal order. Illegality refers to the failure of the decision-maker to correctly understand the law that regulates his decision-maker power and apply it. Failure to exercise discretion would also be illegality because there is no unfettered discretion to refuse to refer in any case and discretion is conferred with the intention that it should be used to promote the policy of the legislation. Another point of interest is that the Secretary refuses to give any reason for the decision. Although, there is no general duty to give reasons, reasons may have to be given where the decision appears aberrant.

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Remedies

A mandatory order may be available to Bethany to mandate the giving of compensation.

To conclude, Penny can argue that the decision of the commission is irrational, Jacob can argue that the decision of the commission is procedurally improper and Bethany can argue that the decision of the Secretary of State is illegal.

Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

Council for Civil Service Unions v Minister for Civil Service [1985] AC 374 HL.

Dimes v Grand Junction Canal Proprietors (1852) 3 H.L. Cas. 759.

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.

R v Higher Education funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242

R v Medical Appeal Tribunal ex parte Gilmore [1957] 1 QB 574

Books

Auburn J, Moffett J, and Sharland A, Judicial Review: Principles and Procedure (Oxford: OUP 2013).

Oliver D and Drewry G, The Law and Parliament (Cambridge: Cambridge University Press 1998).