LAW REPORT: Council hunting ban was unlawful

Regina v Somerset County Council, ex parte Fewings and others. Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Simon Brown and Lord Justice Swinton

Regina v Somerset County Council, ex parte Fewings and others.

Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Simon Brown and Lord Justice Swinton Thomas).

17 March 1995

A resolution by a local authority to ban hunting on its land was unlawful because it was passed on moral rather than administrative grounds.

The council's use of the land was governed by the statutory purposes for which it was acquired, namely for the "benefit, improvement or development" of its area; but the ban on hunting was imposed simply because most councillors found it morally repugnant.

The Court of Appeal by a majority dismissed an appeal by Somerset County Council and upheld the decision of Mr Justice Laws ([1995] 1 All ER 513) granting a judicial review application by William Charles Fewings, William Stewart Leyland and Richard Down, representatives of the Quantock Staghounds, and quashing the council's decision on 4 August 1993 to ban the hunting of deer with hounds on its land at Over Stowey Customs Common.

The land in question was a strip of 148 acres which bisected a larger area regularly hunted by the Quantock Staghounds. The hunt was formed in 1917 and had hunted over the land since then.

Michael Beloff QC and David Holgate (Knights, Tunbridge Wells) for the hunt; Michael Supperstone QC and Philip Sales (Sharpe Pritchard for JK Whitcutt) for the council.

SIR THOMAS BINGHAM MR said it was common ground that the majority on the council who supported the ban were moved to do so by their belief that hunting involved unacceptable and unnecessary cruelty to the red deer who were the victims of the chase. The council also said: "it is for every landholder to decide (within the general framework of the law) what activities he or she wishes to allow on his [or her] land."

The court had no role as arbiter between those who condemned hunting as barbaric and cruel and those who supported it as a traditional country sport more humane in its treatment of deer or foxes than other methods of destruction such as shooting, snaring, poisoning or trapping. The question was whether the council acted lawfully in making the decision on the ground it did.

The council's acquisition of the land was governed by section 120(1)(b) of the Local Government Act 1971, which provided that: "(1) For the purposes of ... (b) the benefit, improvement or development of their area, a principal council may acquire by agreement any land, whether situated inside or outside their area."

His Lordship would not accept the judge's view that the question of cruelty was necessarily irrevelant to a consideration of what was for the benefit of the area. But there was a categorical difference between saying "I strongly disapprove of X" and saying "It is for the benefit of the area that X should be prohibited."

At no point before or during the debate was the council's attention drawn to the governing statutory provision. Councillors appeared to have been invited to give free rein to their personal views. The council appeared to equiparate its position with that of a private landowner, without appreciating the overriding statutory constraints applying to local authority landowners.

Had councillors considered the statutory test, they would have had to attempt to define what benefit a ban would confer on the area and conversely what detriment the absence of a ban would cause. It was not appreciated that personal views, however strongly held, had to be related to the benefit of the area.

As a result, the council's statutory power was not exercised to promote the purpose for which it was conferred.

LORD JUSTICE SWINTON THOMAS concurred.

LORD JUSTICE SIMON BROWN dissented. The cruelty argument and the countervailing ethical considerations were necessarily relevant to the council's decision: had they been ignored, the council would have been open to criticism. Provided councillors had regard to other relevant considerations, they were clearly entitled to regard the cruelty argument as decisive.

Paul Magrath, Barrister