Public Law Challenges.

A public law challenge is taken by way of judicial review. Until very recently it had been thought that judicial review type challenges to decisions to evict Gypsies and Travellers should always be taken in the High Court. It has now been made clear, however, that if a Gypsy or Traveller wishes to challenge a possession action brought by a public authority on judicial review grounds then he or she should raise any such argument as a defence in those proceedings (Doherty v Birmingham City Council and Kay and Price).

Decisions of public bodies, such as local authorities, may be challenged on public law grounds on the basis that:

  • the decision is so unreasonable that no reasonable public authority could have come to the decision (known as Wednesbury unreasonableness, following the case of Associated Provincial Picture Houses v Wednesbury Corporation);
  • the public authority failed to take into account relevant material when reaching its decision;
  • the public authority took into account irrelevant material when reaching its decision;
  • in reaching its decision the public authority misdirected itself in law;
  • the public authority fettered its discretion by adopting a blanket policy without regard to the facts of the individual case;
  • the public authority acted in breach of natural justice;
  • the public authority breached its obligations under the Human Rights Act 1998.

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