ABSTRACT
Having considered the substantive grounds for judicial review we now consider those grounds which are largely brought under the umbrella term of procedural impropriety. It is important to note that although this is labelled as ‘procedural’ there are some aspects of natural justice which are deep rooted in the common law tradition and have significant theoretical importance within administrative law.1 At the present time procedural impropriety could be said to cover the following aspects of judicial review:
Failure to comply with procedures laid down by statute may invalidate a decision. The courts distinguish between those procedural requirements which are mandatory, the breach of which will render a decision void, and those which are directory, which may not invalidate the decision taken. In London and Clydesdale Estates Ltd v Aberdeen District Council (1979), the House of Lords emphasised the inherent vagueness in the distinction and stressed that the court would not draw a hard and fast line: it is all a matter of degree and the particular circumstances of the case must be examined.2 However, in some cases, the requirement to adhere to procedural correctness is clear. For example, in Bradbury v Enfield London Borough Council (1967), the Education Act 1944 provided that, if a local education authority intends to establish new schools or cease to maintain existing schools, notice must be given to the minister, following which, public notice must be given in order to allow interested parties to comment.3 The Council breached the requirement of public notice and the plaintiffs sought an injunction. The Council claimed that educational chaos would occur if they were required to comply with the procedural requirements. That plea met with little sympathy in court. Lord Denning stated that:
Further, as has been seen earlier, in the Aylesbury Mushroom case,4 the court ruled that the statutory requirements of consultation5 with organisations or associations which represented substantial numbers of people could not be avoided by consultation with the largest representative body of all agricultural horticultural and forestry industry, workers – the National Farmers’ Union. For true consultation to take place in accordance with law, there must be communication with the representative organisations and the opportunity given of responding thereto, without which ‘there can be no consultation’.
