COUNSEL: Michael Supperstone QC and Philip Sales (instructed by J K Whitcutt, Taunton) for the council.
Michael Beloff QC and David Holgate (instructed by Knights, Tunbridge Wells) for the respondents.

JUDGES: Sir Thomas Bingham MR, Simon Brown and Swinton Thomas LJJ

DATES: 6, 7, 17 MARCH 1995

HEADNOTE: In 1921 the respondent local authority acquired certain common land which it later appropriated in 1974 for amenity purposes. In 1993 the local authority’s environment committee met to consider the issue of deer hunting on the land and, after considering various reports prepared for the meeting, resolved to recommend that it be allowed to continue, since a ban would result in the reduction of the deer herd by indiscriminate shooting and an increase in poaching. However, when the matter went to a full local authority meeting a resolution was passed to ban hunting on the land. The majority of the councillors who voted for the ban did so on the basis of the cruelty argument, namely that hunting involved unacceptable and unnecessary cruelty to deer which were the victims of the chase. The applicants, who regularly hunted on the common, applied for judicial review of the local authority’s decision and sought a review of the legality of the ban, which they contended had been made on purely moral grounds and without regard to the statutory purpose of the local authority’s [*21] power to acquire and manage land under s 120(1)(b)^a of the Local Government Act 1972, namely for the “benefit, improvement or development of their area”. The judge held that the local authority’s resolution was an unlawful exercise of its power under s 120(1)(b) since it could only prohibit hunting if it was objectively necessary as the best means of managing the deer herd or for the preservation or enhancement of the amenity of the area and not because it took the view that hunting was morally repulsive, that being irrelevant; alternatively that the resolution was unlawful because the local authority had imposed the ban with immediate effect without considering how the deer were to be managed in future. He therefore granted the application and quashed the local authority’s decision. The local authority appealed.

^a Section 120(1), so far as material, is set out at p 25 post

Held — The appeal would be dismissed for the following reasons—

(1) A local authority’s power under s 120(1)(b) of the 1972 Act to manage land which it had acquired had to be exercised in accordance with the statutory purposes for which that power had been conferred, in that any decision as to the use of the land had to relate to the “benefit, improvement or development” of its area as a whole. On the facts (Simon Brown LJ dissenting), it was clear that the local authority, in deciding to ban deer hunting over its land, had not exercised its power in order to promote the benefit of its area, since (i) at no point before or during the debate had its attention been directed to s 120(1)(b), which governed the exercise of that power, and (ii) it had failed to appreciate the overriding statutory constraint to which it was subject as a local authority landowner, as distinct from a private landowner, and therefore it had not been entitled to make its decision on the ground relied on.

(2) Moreover (Simon Brown LJ concurring), the local authority’s decision was not open to challenge on the judge’s alternative ground, since the question of management and conservation of the deer herd did not require an immediate solution and it would have been open to the council to explore alternative measures later and if necessary to revoke the ban (see p 29 e to g, p 32 h and p 36 f g, post.

Per Sir Thomas Bingham MR and Simon Brown LJ; Swinton Thomas LJ dissenting. In view of the broad language of s 120(1)(b) of the 1972 Act, it cannot be said that the cruelty argument (or the contrary argument that hunting is a less cruel means of controlling a deer herd than available alternatives) is necessarily irrelevant to a consideration of what is for the benefit of the area.

Decision of Laws J [1995] 1 All ER 513 affirmed on other grounds. [*22] Appeal

By notice of appeal dated 3 March 1994 Somerset County Council appealed from the decision of Laws J ([1995] 1 All ER 513) on 9 February 1994 granting an application by William Charles Fewings, William Stewart Leyland and Richard Downs, representatives of the Quantock Staghounds, who regularly hunted on the council’s land at Over Stowey Customs Common, Somerset, for judicial review of the council’s resolution passed on 4 August 1993 banning hunting on the common, and quashing the said resolution. The grounds of appeal were that the judge had erred in holding that the council, in passing the resolution pursuant to its powers under s 120(1)(b) of the Local Government Act 1972, was not entitled to take into account its members’ views on the ethics of hunting deer with hounds. The facts are set out in the judgment of Sir Thomas Bingham MR.

Cur adv vult [*23]

17 March 1995. The following judgments were delivered.

SIR THOMAS BINGHAM MR. The parties to this appeal are, on one side, the Somerset County Council and, on the other, representatives of the Quantock Staghounds (the hunt). The issue which divides them is whether the council acted lawfully when it resolved on 4 August 1993 that:

“This Council, as landowners, with immediate effect, resolves to ban the hunting of deer with hounds on the County Council owned land at Over Stowey Customs Common.”

The hunt say that the resolution was unlawful, because it was based on considerations which members of the council were not permitted to take into account. Laws J ([1995] 1 All ER 513) agreed with them, and accordingly quashed the council’s decision. The council say that the decision was lawful and that the judge erred in holding otherwise. That is the issue now before us.

I

The facts are clearly set out by the judge in his judgment, to which reference should be made for a full account of the background. I confine myself to a summary of the bare facts necessary to show how the issue arises.

In 1921 the council acquired land known as the Quantock Lodge Estate. Most of this land was thereafter let by the council on a long lease to the Forestry Commission. Under this lease the commission enjoyed the right to permit or prohibit the hunting of deer, and it has permitted the land to be used for that purpose. Some of the land was farmland, let to tenant farmers: sporting rights over this land were reserved to the council, which has in practice left the decision whether to permit hunting on their land to the tenant farmers, who have chosen to do so. Part of the land acquired by the council was Over Stowey Customs Common, the land which is (alone) the subject of these proceedings. The common is a long, thin strip of land, about 148 acres in area, which almost bisects the territory over which red deer have for many years been hunted by staghounds. It forms a very small proportion of this territory, but the evidence suggests that the common is so placed as seriously to impede the conduct of the hunt if use of this land is forbidden. The common is part of a larger area designated by the Countryside Commission as an area of outstanding natural beauty unders 87 of the National Parks and Access to the Countryside Act 1949.

In 1974 the common was appropriated to the planning and transportation committee of the council for amenity purposes, and in more recent times the environment committee of the council has succeeded to the role of the planning and transportation committee.

On 2 April 1986 the planning and transportation committee considered whether deer hunting on the common should be banned. Papers before the committee rehearsed arguments for and against a ban. The committee resolved that it would not at that stage exercise its right to ban hunting on the common, but would await the outcome of a deer survey and agreement of a common land management plan. The management plan was prepared. In 1992 and 1993 a study and a working party report were commissioned by the National Trust, and these prompted a report to the Quantock Hills joint liaison group (a local body on which local authorities and the Countryside Commission were represented). This report was directed to the issue of whether hunting should continue to be permitted on the common. The group concluded by a majority that it should. [*24] This report was also before the environment committee of the council on 7 July 1993 when the committee resolved to recommend the council to continue to permit hunting.

When the council met on 4 August 1993 this recommendation was before it. But the leader of the council moved, as an amendment, the motion quoted at the outset of this judgment which was carried by a majority of 26 to 22. This decision followed a debate lasting some one and a half hours, said to have been of a very high quality. Although we have only an impressionistic note of the debate, the drift of the argument is clear. Some speakers urged, at times using strong and emotive language, that hunting deer with hounds involved an unacceptable degree of cruelty, which they and others found offensive and which they felt the council should not permit on its land. Others argued that hunting was a more humane way of controlling the size of the herd than any other, and that it was only the existence of the hunt which preserved the deer from piecemeal and often cruel destruction by local farmers. Reference was made to alternative means of culling deer, and dispatching accidental casualties, if hunting were not permitted. It is common ground on this appeal (and the judge held) that the majority 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. I shall hereafter refer to this, for convenience, as “the cruelty argument”.

It appears from the note that in his opening remarks the leader of the council referred to its clear right to control its own land. His motion made reference to the council “as landowners”. After the meeting of the council, in answer to a complaint by the Quantock deer management and conservation group that it had not been consulted, the council replied:

“… 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. In this case the County Council took the view that it did not wish to allow deer hunting on this piece of land.”

II

The judge was at pains to emphasise what these proceedings are not about (see [1995] 1 All ER 513 at 515-516). This is so important that I must repeat it.

The point is often made that unelected unrepresentative judges have no business to be deciding questions of potentially far-reaching social concern which are more properly the preserve of elected representatives at national or local level. In some cases the making of such decisions may be inescapable, but in general the point is well made. In the present case it certainly is. The court has no role whatever as an arbiter between those who condemn hunting as barbaric and cruel and those who support it as a traditional country sport more humane in its treatment of deer or foxes (as the case may be) than other methods of destruction such as shooting, snaring, poisoning or trapping. This is of course a question on which most people hold views one way or the other. But our personal views are wholly irrelevant to the drier and more technical question which the court is obliged to answer. That is whether the council acted lawfully in making the decision it did on the grounds it did. In other words, were members entitled in reaching their decision to give effect to their acceptance of the cruelty argument?

[*25] III

In seeking to answer that question it is, as the judge very clearly explained, critical to distinguish between the legal position of the private landowner and that of a land-owning local authority (see[1995] 1 All ER 513 at 523-525). To the famous question asked by the owner of the vineyard: “Is it not lawful for me to do what I will with mine own?” (St Matthew xx. 15) the modern answer would be clear: “Yes, subject to such regulatory and other constraints as the law imposes.” But if the same question were posed by a local authority the answer would be different. It would be: “No, it is not lawful for you to do anything save what the law expressly or impliedly authorises. You enjoy no unfettered discretions. There are legal limits to every power you have.” As Laws J put it, the rule for local authorities is that any action to be taken must be justified by positive law (see[1995] 1 All ER 513 at 524).

IV

The positive law in issue in this case is agreed by the parties to be s 120(1)(b) of the Local Government Act 1972, which provides:

“For the purposes of … the benefit, improvement or development of their area, a principal council may acquire by agreement any land, whether situated inside or outside their area.&#¤148;

At first sight this section has little to do with the present case, since we are not dealing with the acquisition of land but with the management or use of land which the council acquired over 70 years ago. But the council is a principal council within the statutory definition; we have been referred to no statutory provision or rule of law more closely in point; any other provision, unless more specific, would be bound to require powers to be exercised for the public good; and it seems perhaps reasonable to accept that the purposes for which land may be acquired are or may often be those to which the land should be applied after acquisition. I would therefore agree with Laws J, adapting his language a little, that the primary question in this case is whether the councillors’ acceptance of the cruelty argument is capable of justifying the ban as a measure which conduces to “the benefit, improvement or development of their area” within s 120(1)(b) of the Act:

“Did they reach a decision on grounds which transgressed the fetter or limit which Parliament had imposed upon them, so that there was no positive legal justification for what they did?” (See [1995] 1 All ER 513 at 525.)

V

It is noteworthy that s 120(1) does not provide that principal councils may acquire land for the purposes of the benefit, improvement or development of that land. The reference is to the benefit, improvement or development of their area. That indicates that the draftsman was concerned not merely with improved husbandry of particular land but with wider questions of public benefit. The power to acquire land outside the council’s area reflects the same intention. So a principal council would, it would seem, be authorised, in the absence of more specific provisions, to acquire land outside its area to be used as an adventure training or fieldcraft centre, or perhaps as a home for the elderly, if to do so would benefit its area. [*26] The researches of counsel have unearthed only one authority in which s 120(1)(b) has been applied. In Costello v Dacorum DC (1982) 81 LGR 1 a council, having tried but failed to prevent the use of a site by gipsies and other caravan-dwellers by means of an enforcement notice, itself took a lease of the land and then started proceedings to evict the occupiers. Lawton LJ (with whom Brightman and Oliver LJJ agreed) said (at 10):

“The real problem in this case is whether they had any statutory rights to take leases of land for the purposes for which they said they were taking them, as set out in the council’s resolution of 21 June 1978. In my judgment, on the face of that resolution, they were acting well within the powers conferred upon them by section 120(1)(b) of the Local Government Act 1972. That section provides: ‘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.’ The object of the council in acquiring this land under the leases was, in my judgment, clearly for the benefit and improvement of their area. The site had long been, as I have already said, an eyesore. It gave offence, because of what was done on it, to large numbers of people living in the neighbourhood. The council were under pressure from the ratepayers to do something about the site. It follows, in my judgment, that what they did was for the benefit and improvement of the area. They were intending to get rid of the caravan dwellers. They were intending to get the site cleaned up and the rubbish disposed of and the site returned to its proper use as common land. I find it difficult to think of a clearer case of acquisition of land by a local authority coming within the provisions of section 120(1)(b). The fact that the consequence was that they could get rid of the caravan dwellers, even though the Secretary of State had given them temporary planning permission to be there, in my judgment, in no way was a misuse of their powers under section 120.”

This case is perhaps too obvious to give much help. The council acquired the land to remedy a nuisance. Had the council acquired the land for another purpose beneficial to its area, and had the nuisance then arisen, it could no doubt have taken appropriate steps to mitigate the nuisance, but it would scarcely have needed to rely on s 120 for that purpose.

VI

Laws J held the council’s resolution to be an unlawful exercise of power for reasons which he succinctly summarised as follows ([1995] 1 All ER 513 at 529-530):

“What then is the true scope of the words in s 120(1)(b) ‘the benefit, improvement or development of their area’? In my judgment, this language is not wide enough to permit the council to take a decision about activities carried out on its land which is based upon freestanding moral perceptions as opposed to an objective judgment about what will conduce to the better management of the estate. Section 120(1)(b) is not within the class of provisions which require the decision-maker to have regard to moral considerations as such. A prohibition on hunting, which manifestly interferes with the lawful freedom of those who take part in the sport, could only be justified under the subsection if the council reasonably concluded that the [*27] prohibition was objectively necessary as the best means of managing the deer herd, or was otherwise required, on objective grounds, for the preservation or enhancement of the amenity of their area. The view that hunting is morally repulsive, however pressing its merits, has nothing whatever to do with such questions. Section 120(1)(b) confers no entitlement on a local authority to impose its opinions about the morals of hunting on the neighbourhood. In the present state of the law those opinions, however sincerely felt, have their proper place only in the private conscience of those who entertain them. The council has been given no authority by Parliament to translate such views into public action; there is nothing in the section to indicate that is has.” (Laws J’s emphasis.)

The judge did not base his decision on, but found support for it in, Calder and Hebble Navigation Co v Pilling (1845) 14 M & W 76, 153 ER 396. In that case the proprietors of a canal were empowered by a local Act to make byelaws “for the good and orderly using the said navigation”. The proprietors made a byelaw that the canal be closed on Sundays. It was held to be bad because the power conferred on the proprietors was solely for the orderly use of the navigation and:

“The rules which they are empowered to make have nothing to do with the regulation of moral or religious conduct, which are left to the general law of the land, and to the laws of God.” (See 14 M & W 76 at 88, 153 ER 396 at 401 per Alderson B.)

It was not open to the proprietors to give effect to their view that use of the canal on Sundays was indecorous. I agree with the judge that this is an interesting case, but I also agree that it does not advance the present case very much. It turned on the construction of a particular statutory provision in terms much more specific than those in issue here and it does not seem to me that acceptance of the cruelty argument imports, otherwise than indirectly, any attempt to regulate the morals or religious conduct of those who hunt deer on the common.

VII

Mr Supperstone QC, for the council, submitted that the judge had construed s 120(1)(b) too narrowly. It was, he reminded us, common ground that “the benefit … of their area” included wildlife benefit (see [1995] 1 All ER 513 at 523). Those who accepted the cruelty argument were, he said, entitled to give effect to their view that the use of the council’s land for hunting was not for the benefit of the area, and the judge was wrong to treat that expression as applying to the management of the herd alone. He argued that on an issue of this kind councillors were bound, and if not bound entitled, to have regard to the ethical arguments for and against hunting and the judge had been wrong to treat such considerations as irrelevant. Where power had been entrusted to a popular assembly, the court should be slow to interfere with the exercise of that power.

For the hunt, Mr Beloff QC supported the judge’s reasoning. The issue was a short point of statutory construction and the judge had construed the section correctly. Acceptance of the cruelty argument had nothing to do with the benefit of the area. The resolution was an impermissible attempt by those who accepted the cruelty argument to outlaw an activity very recently regulated by Parliament in the Deer Act 1991. In resolving as it did the council acted as if it enjoyed the free discretion of a private landowner and without regard to the constraints which bound a local authority.

[*27] VIII

I accept the council’s basic contention that the judge put too narrow a construction on the words “the benefit … of their area”. The draftsman would have been pressed to find broader or less specific language. I would not accept the judge’s view that the cruelty argument, or the contrary argument that hunting is a less cruel means of controlling the herd than available alternatives (also, in the judge’s terms, a moral argument), is necessarily irrelevant to consideration of what is for the benefit of the area. That is in my opinion to place an unwarranted restriction on the broad language the draftsman has used.

There is, however, as I think, 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”. The first is the expression of a purely personal opinion which may (but need not) take account of any wider, countervailing argument. There are, for example, those so deeply opposed to the capital penalty on moral grounds that no counter-argument (however cogent) could shake their conviction. The second statement is also the expression of a personal opinion, but involves a judgment on wider, community-based grounds of what is for the benefit of the area. Both statements may of course lead to the same conclusion, but they need not. There is nothing illogical in saying “I strongly disapprove of X, but I am not persuaded that it is for the benefit of the area that X should be prohibited”. Thus a person might be deeply opposed to the capital penalty but conclude that it would not be for the benefit of the community to prohibit it so long as its availability appeared to deter the commission of murder.

The question therefore arises whether, in resolving as it did on 4 August 1993, the council exercised its power to further the object prescribed by the statute, the benefit of the council area. I conclude that it did not, for these reasons.

(1) At no point, before or during the debate, was the attention of the council drawn to what is now agreed to be the governing statutory provision. The minds of councillors were never drawn to the question they should have been addressing. As the judge observed ([1995] 1 All ER 513 at 523): “It follows that if the ban was lawful, it was so more by good luck than judgment.”

(2) A paper circulated to councillors with the agenda concluded:

“In the final analysis people go hunting primarily because they find it a sport they enjoy. The County Council must come to a decision, as the National Trust report said, ‘largely on the grounds of ethics, animal welfare and social considerations …’ which are matters for members to decide.”

I accept that animal welfare and social considerations were relevant matters to take into account, and I have accepted that ethical considerations could be. But this statement does not express or exhaust the statutory test, and could well be read as an invitation to councillors to give free rein to their personal views.

(3) The reference in the resolution to the council “as landowners”, and the statement in the letter (quoted above) written after the resolution that it was for every landowner to decide what activities he wished to allow on his land, appear to equiparate the positions of private and local authority landowners. This in my view reflected a failure to appreciate the overriding statutory constraint.

(4) The lack of reference to the governing statutory test was not in my view a purely formal omission, for if councillors had been referred to it 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 may be that they could have done so, but as it was they did not need to try. The note certainly [*29] suggests that the debate ranged widely, and reference was made to “economic grounds’ and “social damage” as well as to the cruelty argument and the contrary moral argument. But the note also suggests that expressions of purely personal opinion loomed large: “rituals unwholesome instincts”, “systematically torture”, “barbaric and amusement”, “uniquely abhorrent”, “pleasure torturing animals”. In the absence of legal guidance, it was not, I think, appreciated that personal views, however strongly held, had to be related to the benefit of the area.

I accordingly agree, although on much narrower grounds, that the council was not entitled to make the decision it did on the grounds it relied on. I leave open, but express no view on, the possibility that the same decision could have been reached on proper grounds. In reaching this conclusion I gain no assistance from authorities such as Slattery v Naylor (1888) 13 App Cas 446 and Kruse v Johnson [1898] 2 QB 91, [1895-9] All ER Rep 105 on judicial review of byelaws made by popular assemblies. The present case involves no issue of reasonableness. The question is whether a statutory power was exercised to promote the purpose for which the power was conferred. I conclude that it was not.

IX

The judge ruled that he would, had it been necessary, have quashed the council’s decision on an alternative ground (see [1995] 1 All ER 513 at 532). This was that the council failed to take account of a relevant consideration in reaching their decision, namely the effect which a ban would have on the management of the herd and how the deer were to be conserved in the light of it. If I am wrong in the main conclusion I have expressed, I do not share the judge’s view that the decision is vulnerable on this alternative ground. The note shows that frequent references were made in the debate to the use of marksmen to cull deer and dispatch casualties. But in any event the question of management and conservation did not require an immediate solution. On the assumption that the ban would take effect at once, it remained to be seen what effect it would have (since it only applied to the common) on the herd as a whole. There was time to explore alternative measures later. And if alternative measures proved impracticable the ban could be revoked. I would dismiss this ground of challenge.

X

In common, as I understand, with other members of the court, I was concerned during the hearing whether s 120(1)(b) could really be the source of the council’s powers relevant to this appeal, although agreed by both sides to be so. Prompted by that concern, the parties were invited to draw our attention to the relevant byelaw-making powers of the council, on which neither side had up to then relied.

It appears to be clear that under s 90(1) of the 1949 Act the council has power to make byelaws “for the prevention of damage to the land … or anything thereon … and for securing that persons resorting thereto will so behave themselves as to avoid undue interference with the enjoyment of the land … by other persons”. Before making byelaws the council is obliged to consult the Countryside Commission (s 90(4) of the 1949 Act). There must be publicity and an opportunity for inspection of draft byelaws (s 236(4) and (5) of the 1972 Act), and the byelaws do not have effect unless confirmed by the Secretary of State (s 236(3) and (11) of the 1972 Act). The council have made byelaws which apply to the common, but they have not at any time sought by byelaw to ban the hunting of deer on the common. [*30] The council suggests that acceptance of the cruelty argument would of itself empower the council to ban the hunting of deer on the common by byelaw: deer are things on the common and killing them cruelly on the common by hunting could be to cause them damage. The hunt reply that “anything thereon” in s 90(1) refers to inanimate objects, that prevention of damage does not include prevention of the perceived cruelty to deer by hunting and that s 90 does not permit activities to be banned on grounds of moral repugnance.

It is unnecessary, and probably undesirable, to express a firm conclusion. I am tentatively inclined to the view that wildlife could rank as things and that the council could by byelaw prohibit the destruction, otherwise lawful, of (say) squirrels, pigeons or rabbits on the common by any means regarded as cruel, or altogether, and if these creatures could be so protected it would be hard to distinguish between them and deer. I am, however, persuaded that the parties were probably right to eschew argument about byelaw-making powers: the safeguards which attach to the making of byelaws are appropriate where conduct is to be criminalised and if (as the parties agree) s 120(1)(b) of the 1972 Act is the governing provision its proper construction cannot be affected by the existence or non-existence of byelaw-making powers.

Neither party relied in argument before us on s 193 of the Law of Property Act 1925.

For the reason given in Part VIII, I would dismiss this appeal.

SIMON BROWN LJ. Somerset County Council own Over Stowey Customs Common. They acquired it in 1921 and in 1974 appropriated it for amenity purposes. Since 1917 it has been part of a substantially larger area of land hunted for deer by the Quantock Staghounds.

On 4 August 1993 the council resolved to ban hunting on the common. They did so because the majority of those voting thought it morally repulsive: they found “the cruelty argument” decisive-I gratefully adopt Sir Thomas Bingham MR’s term to describe the view that hunting involves unacceptable and unnecessary cruelty to the deer and, indeed, his exposition of the facts.

The central questions raised by these proceedings are first, whether the council was entitled to give effect to the cruelty argument: was it, in short, a relevant and permissible consideration? Second, assuming that it was, did those councillors who found it decisive have proper regard also to such other relevant considerations as arose?

As to the first question-was the cruelty argument properly relevant to the decision-Laws J ([1995] 1 All ER 513) held that it was not.

Clearly this question falls to be answered in the context of the particular statutory power which the council was exercising. Throughout these proceedings it has been accepted on both sides that the governing statutory provision is s 120(1)(b) of the Local Government Act 1972. Sir Thomas Bingham MR has already set it out and I need not repeat it. The ruling words are that the council may acquire land for “the benefit, improvement or development of their area”. Both parties further agree that the section also governs the management of the acquired land.

In short, the council is required to manage the common for the benefit of its area. Put like that, odd though its statutory origin may be, the obligation appears far from surprising. Indeed it accords closely-I would suggest precisely-with what in any event would necessarily dictate the council’s regulatory actions: considerations of public interest and a desire to advance the public good (see [*31] Tower Hamlets London BC v Chetnik Developments Ltd [1988] 1 All ER 961, [1988] AC 858).

The crucial question therefore becomes: is the cruelty argument relevant to determining what will benefit the council’s area or, as I think no different, relevant to their determination of what will advance the public good?

Despite Mr Beloff QC’s strenuous arguments to the contrary, I find it impossible to say that the councillors must shut their minds to the cruelty argument, still less that they must do so as a matter of the strict construction of s 120(1)(b).

I readily accept that the concepts of benefit to the area, and public interest and good, invite consideration first of the council’s human community, rather than its wildlife. But the two considerations are not discrete: human well-being for many will depend upon their satisfaction as to animal welfare. That explains much animal legislation and why such activities as bear-baiting and cock-fighting have long since been abolished. It explains too why a spacious zoo provides enjoyment when a cramped one may not, and why bull-fighting is unlikely to catch on here. The examples could be multiplied. Why then should it be thought illogical and thus impermissible for councillors to have regard to their sentiments as representatives of the local community in deciding whether that community’s land-the common-should be hunted? As the judge himself recognised ([1995] 1 All ER 513 at 523):

“… individual councillors … may readily suppose that as representatives, not delegates, of their electors they ought to give effect to their opinions about any issue of principle which they perceive as touching a question before them for decision.”

He, of course, concluded that the councillors should have been warned to the contrary. I disagree.

I am not convinced that it has assisted the argument hitherto to have glossed the council’s statutory duty by the concession that it was bound “to manage the estate for maximum landscape, wildlife and public recreation benefit” (see[1995] 1 All ER 513 at 523). But even if the focus is properly upon wildlife benefit, that surely encompasses the cruelty argument-what Mr Supperstone QC called “the deer’s quality of life and manner of death”. The cruelty argument is, indeed, only one aspect of the overall ethical debate. There are powerful arguments both ways on the issue of hunting and each side invokes ethical considerations in support. By no means all those in favour of hunting themselves enjoy the sport: rather many believe that it represents the kindest as well as the most effective method of managing the herd. The anti-hunt faction enjoys no moral monopoly. Is it to be said that those opposing the ban must put aside their moral views too? Surely not, and yet I have difficulty in reconciling the judgment below with councillors giving proper consideration to such suffering as would result from uncontrolled shooting and poaching.

It follows that I agree with Sir Thomas Bingham MR that the judge construed too narrowly the statutory power here in question and erred in regarding the cruelty argument as necessarily irrelevant to the council’s decision. I, for my part, indeed, would go further than Sir Thomas Bingham MR and conclude that the cruelty argument, as well indeed as the countervailing ethical considerations, were necessarily relevant to the decision. Had they been ignored I believe that the council would have been open to criticism. [*32] There is a passage in the judgment below in which the judge speaks of “a decision-maker who fails to take account of all and only those considerations material to his task” (see[1995] 1 All ER 513 at 525). It is important to bear in mind, however, as Mr Supperstone contended and Mr Beloff accepted, that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning process. On Wednesbury challenges (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223) it is often salutary to bear in mind this short passage from Cooke J’s judgment in CREEDNZ Inc v Governor General [1981] 1 NZLR 172 at 183:

“What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision.”