R v Somerset CC Ex p. Fewings (Quantock Staghounds)

Factual and Procedural Background

The Somerset County Council owns land known as Over Stowey Customs Common, acquired in 1921. This land forms part of a larger territory historically used for hunting red deer by the Quantock Staghounds ("the Hunt"). The common is approximately 148 acres and is designated as an area of outstanding natural beauty. In 1974, the common was appropriated by the council for amenity purposes.

On 4 August 1993, the county council resolved to ban deer hunting with hounds on the common, a decision moved by the council leader and passed by a majority of 26 to 22. The resolution was motivated primarily by the belief among the majority that hunting involved unacceptable cruelty to the deer ("the cruelty argument").

The Hunt challenged the resolution as unlawful, arguing that the council based its decision on impermissible considerations. Laws J agreed and quashed the council's decision. The county council appealed, asserting that its decision was lawful and that the judge erred in quashing it. The appeal concerns whether the council lawfully exercised its statutory powers in making the ban.

Legal Issues Presented

1. Whether the county council lawfully exercised its powers under section 120(1)(b) of the Local Government Act 1972 when it resolved to ban deer hunting on its land.
2. Whether the council was entitled to rely on the "cruelty argument"—the moral opposition to hunting—as a relevant and permissible consideration in its decision.
3. Whether the council failed to take into account relevant considerations, including the management and conservation of the deer herd, in imposing an immediate ban.

Arguments of the Parties

County Council's Arguments

• The council contended that the statutory phrase "the benefit... of their area" in section 120(1)(b) should be construed broadly to include wildlife welfare and ethical considerations such as the cruelty argument.
• Councillors were entitled, and possibly bound, to consider ethical arguments regarding hunting, and such moral considerations were relevant to determining what benefits the area.
• The council argued that the judge erred by construing the statutory power too narrowly and excluding moral considerations from the decision-making process.
• The council maintained that the decision was made by a democratically elected body and that courts should be slow to interfere with such exercises of delegated power.
• Regarding the alternative ground about failure to consider deer management, the council argued that this was not fatal since the effects of the ban could be addressed subsequently.

Hunt's Arguments

• The Hunt supported the judge's reasoning that the council acted unlawfully by basing its decision on moral perceptions rather than an objective judgment related to land management or public benefit.
• They argued that the statutory power did not authorize the council to impose bans based on moral repugnance or personal opinions about hunting.
• The resolution was an impermissible attempt to outlaw a lawful activity recently regulated by Parliament under the Deer Act 1991.
• The council acted as if it had the unfettered discretion of a private landowner, disregarding the legal constraints applicable to a local authority.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the statutory power under section 120(1)(b) of the Local Government Act 1972, which authorizes principal councils to acquire land for "the benefit, improvement or development of their area." Although this section primarily concerns land acquisition, it was accepted to govern land management as well.

The court distinguished between the unfettered discretion of a private landowner and the constrained powers of a local authority, which must act within positive law and statutory limits. The central question was whether the council's decision, motivated by moral opposition to hunting (the cruelty argument), was a lawful exercise of power under the statute.

The Master of the Rolls initially agreed with the judge that the council had not properly applied the statutory test and had failed to consider the legal constraints, treating itself as a private landowner. He held that the council's decision was not justified as a measure that objectively benefited the area, since the moral opposition to hunting was not a proper legal ground under section 120(1)(b).

However, Lord Justice Simon Brown dissented on this point, reasoning that the statutory language was broad enough to encompass ethical considerations, including animal welfare and the cruelty argument, as relevant to the benefit of the area. He emphasized that councillors, as representatives of their community, could legitimately consider moral concerns in determining public interest and benefit.

Lord Justice Swinton Thomas agreed with the Master of the Rolls on the narrow statutory construction and found that the council had not properly considered the statutory constraints or powers. He held that the decision was unlawful because it was based solely on moral repugnance rather than on land management or public benefit grounds within the statutory framework.

The court also considered but did not definitively decide on the council's powers to make by-laws under the National Parks and Access to the Countryside Act 1949, noting that the by-law process involves safeguards not present in the council's resolution.

On the alternative ground that the council failed to consider the impact of an immediate ban on deer management, the majority found no sufficient reason to quash the decision on that basis, as the issue could be addressed subsequently.

Holding and Implications

DISMISSED

The appeal by the Somerset County Council was dismissed, affirming the judge's decision that the council's resolution to ban deer hunting on Over Stowey Customs Common was unlawful. The court held that the council failed to properly apply the statutory power under section 120(1)(b) by basing its decision primarily on moral opposition to hunting without demonstrating that the ban was objectively for the benefit, improvement, or development of the area.

The decision means the council's ban was quashed, but the court left open the possibility that a similar ban could be lawful if properly grounded in relevant statutory considerations. No new precedent was established beyond the interpretation of the statutory power and the limits on local authority discretion in land management decisions.