The remains of an ancient theatre had been discovered during the development of a site. The respondent declined to schedule the building as a monument, saying a balance had to be found between preservation and the need to ensure the prosperity of the city, the site was not itself under threat from the developers, and compensation would be payable for any ensuing delays.
Held: The Secretary of State was exercising a discretion given to him under the Act. That discretion had not been shown to have been exercised improperly. Members of the public at large had insufficient locus standi to seek judicial review, and locus could not be obtained buy applying to have the building scheduled under the Act.
Schiemann J said: ‘There is no doubt that, in the early part of this decade, the High Court was fairly liberal in its interpretation of who had ‘a sufficient interest’ to be able to apply for judicial review.’ and ‘The applicant’s argument on standing runs essentially like this. 1. When scheduled monument consent is sought anybody who wishes to make representations to the Secretary of State can do so and the Secretary of State must consider any such representation once made: see paragraph 3(3) of Schedule 1 to the Act of 1979. 2. Therefore Parliament recognised that everyone has an interest in the preservation of monuments considered by the Secretary of State to be of national importance and everyone has a legitimate expectation to be consulted on such a matter. 3. The Secretary of State considers the Rose Theatre to be a monument of national importance. 4. At the stage when he is considering whether or not to schedule a monument considered by him to be of national importance, the area of discretion left to the Secretary of State is a very small one and therefore it would be artificial to make a distinction so far as standing is concerned between the position at the scheduling stage and the position at the scheduled monument consent state. 5. Therefore, the court should recognise that everyone has a sufficient interest to challenge, by way of judicial review, the lawfulness of the Secretary of State’s decision in deciding not to schedule. 6. Although as a matter of form the applicant is a company, as a matter of substance the company is merely the corporate expression of the wills and desires of persons of undoubted expertise and distinction in the fields of archaeology, the theatre, literature and other fields and includes local residents, the local Member of Parliament and so on. These are not mere busybodies. The very fact that the Secretary of State has answered with care the representations made by those whose will the applicant embodies gives them a sufficient interest for the purpose of this application. 8. There is no evidence of any rival organisation which claims to represent the public in relation to the Rose Theatre and thus if this application is struck down for lack of standing then the legality of the Secretary of State’s decision is unlikely to be tested in the courts.’
‘I can therefore consider the question of standing by considering whether an individual of acknowledged distinction in the field of archaeology, of which the company has several amongst its members, has sufficient standing to move for judicial review of a decision not to schedule… It seems to be that the decision not to schedule is one of those governmental decisions in respect of which the ordinary citizen does not have a sufficient interest to entitle him to obtain leave to move for judicial review’ and ‘I do not consider that an interested member of the public who has written and received a reply in relation to a decision not to schedule a site as an ancient monument has sufficient interest in the decision to enable him to apply for judicial review. Finally, I ought to say that I recognise the force of Mr. Sullivan’s submission that since an unlawful decision in relation to scheduling either has been made or may well be made in the future, my decision on standing may well leave an unlawful act by a minister unrebuked and indeed unrevealed since there will be those in the future who will not have the opportunity to ventilate – on this hypothesis – their well-founded complaints before the court.
This submission is clearly right. The answer to it is that the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated. Parliament could have given such a wide right of access to the court but it has not done so. The challenger must show that he ‘has a sufficient interest in the matter to which the application relates’. The court will look at the matter to which the application relates – in this case the non-scheduling of a monument of national importance – and the statute under which the decision was taken (in this case the Act of 1979) and decide whether the statute gives that individual expressly or impliedly a greater right or expectation than any other citizen of this country to have that decision taken lawfully. We all expect our decision makers to act lawfully. We are not all given by Parliament the right to apply for judicial review.’
Judges:
Schiemann J
Citations:
[1990] 2 WLR 186, [1990] 1 ALL ER 754, [1990] 1 QB 504
Statutes:
Ancient Monuments and Archeological Areas Act 1979 1
Jurisdiction:
England and Wales
Cited by:
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Explained – Regina v Canterbury Council ex parte Springimage Limited 1993
The court granted locus standi to an applicant to object to a grant of planning permission by way of an application for judicial review. The applicant had an option to purchase land nearby.
David Keene QC said: ‘It seems to me to be clear that . .
Lists of cited by and citing cases may be incomplete.
Administrative, Planning
Updated: 09 May 2022; Ref: scu.222183