Judicial Review is a legal remedy that is frequently mentioned in respect of challenging decisions by public sector bodies. Whilst it certainly has its place in the lawyer’s tool box, it is a process that must be approached with some caution.
As a remedy, Judicial Review is principally aimed at ensuring that bodies exercising public law functions exercise those functions lawfully and fairly and do not abuse their powers. It is possibly less concerned about the actual merits of the decision that was reached and more concerned with the process that was adopted to reach that decision.
In terms of where Judicial Review sits in a lawyer’s tool box, it may be seen as more a tool of last rather than first resort. Generally speaking all other challenge and/or appeal routes against the decision in question need to be exhausted before one can turn to Judicial Review. An application for Judicial Review is also subject to stringent time limits so one has to be careful about ensuring that all necessary steps are complied with as promptly as possible.
In the ordinary course of events the initial application to Court will be for permission to proceed with the Judicial Review, which can and will face detailed scrutiny. Only if the permission stage is successfully passed will the Judicial Review proceed to full hearing.
Whilst the outcome of a Judicial Review may be in an applicant’s favour, it is also possible that the decision making body might subsequently make a similar decision but this time correctly based and justified. It is therefore always important to take a strategic approach to Judicial Review.
We regularly advise parties on challenging the decisions of public law function exercising bodies and Judicial Review.
Contact us if you want to discuss challenging public sector decision making processes and Judicial Review.
Growth in the multi utility provider sector has created a situation that the original drafters of the s.50 of the New Roads and Street Works Act 1991(“NRSWA”) possibly did not envisage.
This possible stretching of the original drafting does create potential issues for multi utility and other providers when seeking to install apparatus in the street where that apparatus is not being installed under an existing statutory right. It can also create issues where a multi utility provider does hold a statutory right to install one supply. The holding of a statutory right in respect of, say, gas as an Independent Gas Transporter will not, of itself, provide a statutory right to install water, electricity or telecoms apparatus.
Unlike a party with a statutory right to install apparatus in the street, a party wishing to install utility apparatus in the street who does not hold that right is left having to secure a s.50 licence from the street authority.
The most frequently encountered problem by parties seeking s.50 licences are the terms demanded by the street authority. The cause of this is that there is not a right to a s.50 licence. S.50(1) of NRSWA confers a discretion on a street authority as to whether it grants a s.50 licence by its use of the wording “The street authority may grant a licence…..” (our emphasis added).
That discretion is not an absolute one. Like all authority decision making, the discretion must be exercised reasonably. Any unreasonable exercise of the discretion by a street authority may leave the authority open to Judicial Review.
We advise multi utility providers on s.50 licence issues. We also challenge authority decision making processes where that is the appropriate course of action.
Contact us if you would like to discuss how we might assist you in respect of s.50 licences.