Smith (Kathleen Rose) v East Elloe Rural District Council: HL 26 Mar 1956

The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in paragraph 15, which did not apply. The plaintiff said this could not apply where the order was made in bad faith.
Held: An order would not bear any bad faith on its face, and so any bad faith could only be discovered by proceedings. The words of paragraph 16 were explicit and clear and effective. The order could not be impugned. It fell outside the ouster of jurisdiction provision. The regulations provided that any application be made to the High Court within six weeks of notice of the confirmation or making of the Compulsory Purchase Order and that otherwise the Compulsory Purchase Order should not be questioned in any legal proceedings.
Held: (Majority) A challenge of this kind had to be made in accordance with the statutory procedure for challenge and, if not made in accordance with that procedure, could not otherwise be made.
Viscount Simons said: ‘I find it quite impossible to qualify the words of the paragraph in the manner suggested. It may be that the legislature had not in mind the possibility of an Order being made by a local authority in bad faith or even the possibility of an Order being made in good faith being mistakenly, capriciously or wantonly challenged. This is a matter for speculation. What is abundantly clear is that words are used which are wide enough to cover any kind of challenge which any aggrieved person may think fit to make. I cannot think of any wider words. Any addition would be mere tautology’.
Lord Radcliffe said: ‘An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.’
Lord Radcliffe, Lord Hailsham of Saint Marylebone LC, Viscount Simons
[1956] AC 736, [1956] 1 All ER 855, [1956] UKHL 2
Acquisition of Land (Authorisation Procedure) Act 1946
England and Wales
Cited by:
CitedBugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy QBD 1993
The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where . .
CitedBirmingham City Council v Qasim and Others CA 20-Oct-2009
The council argued that the defendant was not a tenant granted to him as a secure tenancy since he had not been granted the tenancy in accordance with its policies. An employee had manipulated the Council’s system to grant tenancies to bypass the . .
CitedMackaill and Another, Regina (on The Application of) v Independent Police Complaints Commission Admn 6-Oct-2014
The three claimants were police officers. They met a senior MP at Sutton Coldfield. They emerged from the meeting and were said to have made misleading statements as to the content of the meeting. The IPCC referred the matters back to local forces . .
CitedRegina v The Secretary of State for the Environment, ex Parte Ostler CA 16-Mar-1976
Statutory Challenge must be timely
The applicant had not taken objection to a proposed road scheme believing wrongly that it would not affect his business. Other objectors had withdrawn because of secret re-assurances given to them by the respondent.
Held: The court was asked, . .
UnsatisfactoryAnisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
CitedMajera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.187074