The presumption of regularity

The presumption of regularity – omnia praesumuntur rite esse acta – is the principle that public law acts are to be regarded and relied upon
as lawful unless and until quashed by the court.

Where a party places reliance on the apparent validity of official acts, the principle operates to presume that the formal requirements have been carried out.

An example can be found in the Court of Appeal’s judgment in the case of R (Newhaven Port and Properties Ltd) v East Sussex County Council [2013] EWCA Civ 276, in which the court said of by-laws relating to Newhaven harbour that had been made under the then harbour authority, Southern Railway
Co, that there was no reason
to suppose they had not been subject to the requisite statutory publicity before the minister confirmed them.

Internal resolution

The principle was recently revisited by the High Court
in a challenge to a compulsory purchase order (CPO) confirmed by the secretary of state for communities and local government and made by the London borough of Haringey (the council) in order to facilitate the development of Tottenham Hotspur’s proposed new stadium in north London, for which planning permission had already been granted as part of a wider mixed-use scheme (R (Archway Sheet Metal Works) v Secretary of State
for Communities and Local Government [2015] EWHC 794 (Admin)).

The key issue in that case
was the extent to which the presumption applied. The claimant suggested it did
not serve to protect what
was described as an internal resolution of the council.

In November 2010 the
council had passed a resolution approving the use of a CPO
to facilitate the new stadium development. The resolution
set out preconditions to be met by the club prior to the council making the CPO.

Thereafter Tottenham tried and failed to move to the Olympic stadium in east London. Once that bid had failed, the club’s chairman committed the club to the Archway scheme and the council revisited the subject
of compulsory purchase.

In March 2012 the council resolved that the preconditions had been met and made the CPO. The order was subsequently confirmed by the secretary of state following a public inquiry.

The claimant, whose land was to be acquired under the order, went to the High Court and argued that the second resolution was unlawful in that the preconditions had not been met (an argument he had made and lost at the public inquiry).

The claimant accepted that the principle of regularity applied to secondary legislation or orders made by a public body affecting the rights of an individual but contended that
it could not apply to what is simply an internal council resolution.

The High Court rejected that proposition and held that it was clear on the highest authority that the presumption of regularity applied to all administrative acts, including internal local authority resolutions.

Public interest

The principle seeks to balance the need for public decisions to be lawfully made with efficient administrative decision making. It does not preclude challenges to public authority decisions but requires them to be made
in timeous fashion.

The principle is of fundamental importance
and is representative of a broader legal concern: legal certainty. In the exercise of powers by public authorities,
it is clearly in the public interest that their decisions cannot
be open to challenge long
after they have been taken
and acted upon.

The presumption also underlies the doctrine of lost modern grant in property law whereby it is assumed, the contrary not having been shown, that a proprietary right long held is lawful.

In the criminal courts, however, where a local authority prosecutor seeks
to rely on an administrative
act in order to prove an
element of an offence, a defendant can, in most cases, put the local authority to proof, and this overrides the civil presumption. SJ

Mark Westmoreland Smith is a barrister specialising in public law at Francis Taylor Building