ABSTRACT
A remedy can be described as an administrative remedy where it is provided for by statute and does not involve recourse to a court of law. Whatever the status of the remedy, be it administrative or judicial, the law provides such a facility for the purposes of enabling an individual to challenge administrative action. The nature and effect of any such challenge allowed by a remedy will depend on a wide range of factors. In the case of the administrative remedy, it is usual to find that the challenge available through the remedy permits a complete re-examination of a decision or some other administrative action. In the case of judicial remedies, which are the subject of the next chapter, the law seeks to ensure that administrative action takes place according to the requirements of the law. If it does not then the individual who is aggrieved and has a sufficient interest in the matter, eg as the person directly affected by a decision, should be able to apply to the appropriate court for one of the judicial remedies. Such a judicial remedy is likely to be available once any administrative remedies have been exhausted. Where, for example, a local planning authority has served an enforcement notice under the Town and Country Planning Act alleging unlawful development without planning permission there is an appeal against the notice to the Secretary of State for the Environment and a further appeal on a point of law to the High Court against his appeal decision. Sometimes there may be a limit placed on any challenge to the validity of a decision taken by an administrative agency on an appeal through the use of an ouster clause of the sort described in Chapter 11. Such a clause might state that: ‘... the validity of any decision shall not be questioned in any proceedings whatsoever’ and appears to make the decision final and conclusive. However, important decisions in cases like Anisminic v Foreign Compensation Commission (1969) which are dealt with in Chapter 11 show that the decision of the administrative agency concerned may be final and conclusive in relation to its intra vires facts and merit but not on matters of law. Because it is the High Court which is the final arbiter on matters of law and legality, there is always the possibility
that the decision’s legality can be challenged through one of the statutory or non-statutory remedies to be described in the next chapter. It is not unusual to find that Parliament has already addressed itself to the question of the status of the decision which emerges from an administrative remedy like an appeal. It has been seen in Chapter 5 that the decisions of some administrative tribunals are subject to a statutory appeal on a point of law to the High Court. A decision of the tribunal affected by an error of law can be taken to the High Court although one of the non-statutory remedies, certiorari, could be employed to quash the decision where the error was considered so fundamental as to render it ultra vires. In some instances and particularly in relation to decisions of the Secretary of State for the Environment in the area of town and country planning and compulsory purchase, it will be seen in the following chapter that an ouster clause often protects the decision while statutory provision is made for the limited terms on which the High Court can review its legality.
