Bushell v Secretary of State for the Environment: HL 7 Feb 1980

Practical Realities of Planning Decisions

The House considered planning procedures adopted on the construction of two new stretches of motorway, and in particular as to whether the Secretary of State had acted unlawfully in refusing to allow objectors to the scheme to cross-examine the Department’s witnesses.
Held: He had not acted unlawfully (Lord Edmud-Davies dissenting).
Lord Diplock said: ‘What is fair procedure is to be judged not in the light of constitutional fictions as to the relationship between the minister and the other servants of the Crown who serve in the government department of which he is the head, but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached. To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament’s intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise.’
and ‘The subject matter of [a local inquiry] is the objections to the proposed scheme that have been received by the minister from local authorities and from private persons in the vicinity of the proposed stretch of motorway whose interests may be adversely affected, and in consequence of which he is required… to hold the inquiry. The purpose of the inquiry is to provide the minister with as much information about those objections as will ensure that in reaching his decision he will have weighed the harm to local interests and private persons who may be adversely affected by the scheme against the public benefit which the scheme is likely to achieve and will not have failed to take into consideration any matters which he ought to have taken into consideration.’
Lord Edmund-Davies (dissenting) spoke of the well established basic principle that a defendant should have an opportunity of testing the evidence against him unless there are good and cogent reasons why that is either impossible or undesirable. He said: ‘The general law may, I think, be summarised in this way:
(a) In holding an administrative inquiry (such as that presently being considered) the inspector was performing quasi-judicial duties.
(b) He must therefore discharge them in accordance with the rules of natural justice
(c) Natural justice requires that objectors (no less than departmental representatives) be allowed to cross-examine witnesses called for the other side on all relevant matters, be they matters of fact or matters of expert opinion.
(d) In the exercise of jurisdiction outside the field of criminal law, the only restrictions on cross-examination are those general and well-defined exclusionary rules which govern the admissibility of relevant evidence (as to which reference may conveniently be had to Cross on Evidence, 5th ed (1979) p.17); beyond those restrictions there is no discretion on the civil side to exclude cross-examination on relevant matters.’

Lord Diplock, Viscount Dilhorne, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Lane
[1981] AC 75, [1980] UKHL 1, [1980] 2 All ER 608, [1980] 3 WLR 22, (1980) 144 JP 387, (1980) 78 LGR 269
Highways Act 1959
England and Wales
Cited by:
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Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
CitedRegina v Secretary of State for Education ex parte S QBD 21-Dec-1993
The Secretary of State is to disclose all advice on appeal against special needs assessment. . .
CitedTerence Geoffrey Best and others v Secretary of State for Environment v Bass Holdings Limited v South Somerset District Council v Tesco Stores Limited Admn 5-Mar-1997
Counsel for an objector in a planning case submitted that the contents of an incoming letter lying in the Department’s postroom were imputedly known to the Secretary of State.
Held: The judge generously described the submission as having an . .
ExplainedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedEisai Ltd, Regina (on the Application of) v National Institute for Health and Clinical Excellence (NICE) and Shire Pharmaceuticals Limited and Association of the British Pharmaceutical Industry (Interveners) CA 1-May-2008
The applicant pharmaceutical companies challenged the decision of the National Institute for Clinical Excellence (NICE) to to list certain drugs saying that the procedure adopted was unfair. NICE had revealed that results of calculations it had made . .
CitedWalton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
CitedSave Our Surgery Ltd, Regina (on The Application of) v Joint Committee of Primary Care Trusts Admn 7-Mar-2013
The claimants sought judicial review of the report prepared by the defendants under which departments providing childrens’ heart surgery at their regional hospital would close. They complained that the consultation had been inadequate and flawed. . .

Lists of cited by and citing cases may be incomplete.

Administrative, Planning, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.222908