Control Of Discretionary Powers Notes

The Control of Discretionary Powers

Introduction

• Associated Provincial Pictures House v Wednesbury Corp (CA)

• Where a local authority has been granted an executive discretion, it is only in strictly limited circumstances that the court can interfere. There are a number of such grounds:

• Bad Faith

• Dishonesty

• Unreasonableness

• Attention given to extraneous circumstances

• Disregard of public policy

• Minister for Aboriginal Affairs v Peko Wallsend (Aus HC)

• The court sets out the boundaries on the discretion that can be exercised, it will not substitute its judgment for that of an authority where the discretion is exercised within these limits.

• Bailey v Flood (HC)

• Determination of legality, not correctness.

• State (Lynch) v Cooney

• Presumption that a discretionary power conferred by legislation is to be exercised in accordance with the Constitution

Bad Faith

• Western Fish Products v Penwith District Council (CA)

• It is not fair that the public should read that an authority has been found guilty of 'Bad Faith' where they simply made an honest mistake.

• Listowel UDC v McDonagh (SC)

• A discretionary statutory power if excercised in bad faith can be held invalid – in answer to a question referred by the High Court.

• The State (Cogley) v Dublin Corp. (HC)

• The prosecutor was seeking planning permission which was originally refused by the planning authority but subsequently granted by the relevant Minister subject to their approval.

• The planning authority made a decision to grant approval but later revoked the outline planning permission and the decision.

• If it could be shown that this revocation was simply a device to nullify the Minister's order and a mala fide exercise of power, then it would be invalid.

• Although there are some suspicious features (this was the only business on the agenda, the majority was tiny, the meeting was held when the grant of approval was due) it would be unfair to ground a finding of mala fides on such slim evidence.

• The State (Divito) v Arklow UDC (SC)

• The prosecutor wanted to open an amusement hall in the centre of Arklow and while he was convertin his premises, the respondents revoked the regulation that allowed such a premises to be opened in respect of the entire town.

• They later reinstated in respect of all parts of the town, save where the prosecutor had his premises.

• Court held that in the case of evidence that this decision was made out of a personal grudge against the defendant, then it would be invalid.

• However in this case, there was plenty of objective evidence that this was not the case – there were a number of schools in the vicinity of the premises, there were already four such halls in the town and public opinion was against the opening of another.

Improper Purpose

• Padfield v Minister for Agriculture (HL) - [p]arliament must have conferred the disretion with the intention that it would be used to promote the policy and objects of the Act

• Cassidy v Minister for Industry & Commerce (SC)

• The Minister had power to regulate the maximum price of alcoholic drinks but chose to control price through informal arrangements with publicans.

• When Dundalk based publicans refused to abide by these arrangements, the Minister used his power to impose maximum prices in that area only.

• Court held:

• Although the order was made in order to cow the publicans into rejoining the voluntary scheme, this was very much secondary to the goal of maintaining price stability which was authorised by statute, thus rendering the decision lawful.

• Hoey v Minister for Justice (HC) – A Drogheda courthouse was discontinued as a Circuit Court location pursuant to an executive order. It was held that this was performed for the improper purpose of killing off an action by a group of Drogheda to force the Courthouse to be maintained.

• Porter v Magill (HL)

• A Tory council sought to sell off council houses in wards where they were facing electoral difficulties in the belief that home owners were more likely to vote Tory than council tenants.

• Court held

• Powers conferred on a local authority may be used for the purpose for which they were conferred and no other.

• Thus a power cannot be used for electoral advantage where there is no public policy objective being served.

Relevant Considerations

• P & F Sharpe v Dublin City and County Manager (SC)

• A power to be exercised in a judicial manner carries with it an obligation to give the party subject to the power a fair and proper opportunity of conveying their views to the authority.

• This requires that the authority have regard to all relevant and legitimate factors and disregard and irrelevant or illegitimate factors.

• Tesco Stores v Environment Secretary (HL) – the courts have the power to decide relevance, but it is for the authority to decide on the issue of weight.

• Minister for Aboriginal Affairs v Peko-Wallsend (Aus HC) – Not every instance where a factor to be taken into account has been ignored will justify a decision being set aside – this is particularly so where it would have played no material role in the outcome of the case, due to the weight which would have been given to it.

Irrelevant Considerations

• State (Cussen) v Brennan (SC)

• The authority entrusted with powers to recommend appointments to, inter alia, Health Boards decided to give extra credit to applicants with a knowledge of the Irish language.

• This was not a factor laid down by the Minister pursuant to legislation to which they were supposed to have regard.

• Court held:

• The Commissioners had power to refine, elevate or make more exacting the requirements laid down by the Minister, but not to introduce new or extended qualifications

• O'Higgins CJ (dissenting): the word qualifications in the legislation denotes particular conditions which must be fulfilled in order for the post to be filled – a knowledge of Irish was not a condition in this sense.

• Flanagan v Galway City Manager (HC) –...

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