Background
The claimants challenged a Natural England decision (3 May 2024) to grant 26 supplementary badger control licences under the Protection of Badgers Act 1992, which authorise culling to prevent disease spread. The initial judicial review pleading alleged the decision was unlawful on three grounds: improper purpose, having regard to irrelevant considerations (five specific policy matters), and inadequate reasons.
By November 2025, evidence from the decision-maker (Dr. Oliver Harmar, Natural England’s chief operating officer) established that he never actually considered the five challenged policy matters—they were contained in an internal briefing note he did not access. The claimants conceded this factual issue.
Rather than abandon the claim, the claimants shifted strategy and asked the court to make an advisory declaration answering a hypothetical question: if the decision-maker had considered these five matters, would they have constituted legal irrelevancies?
The Court’s Holding
Fordham J declined to grant the advisory declaration, despite the parties reaching substantial agreement on the answer to the hypothetical question. The court held that a combination of features made an advisory declaration inappropriate in this context.
First, the issue was fundamentally hypothetical, based on a false factual premise (the considerations were never actually taken into account). Courts do not generally decide hypothetical questions divorced from actual or proposed action by public authorities. Second, the declaration would not address the lawfulness of any real action: the considerations were not considered, and taking an irrelevant matter into account does not automatically render a decision unlawful without satisfying materiality requirements. Third, the issue was not a short point of pure statutory interpretation amenable to universal application, but rather a fact-sensitive inquiry specific to this decision in these circumstances. Fourth, the substantive answer was essentially agreed between all parties, meaning there was no genuine dispute for the court to resolve. Finally, the case lacked the character of a proper judicial review—it had transformed from an “audit of legality” into a request for the court to answer a hypothetical question.
Key Takeaways
- Courts will not grant advisory declarations answering hypothetical questions, even where parties agree on the answer, where no actual or proposed unlawful action is at issue.
- An advisory declaration is not appropriate merely because permission for judicial review was granted and the case reached a substantive hearing; the nature of the claim governs the court’s role.
- Identifying whether a consideration is an “obvious irrelevancy” is fact-specific and circumstance-dependent, not a question of pure law suitable for universal clarification through advisory declaration.
- The court may refuse remedies where a claimant seeks to reverse actual facts after abandoning a claim of actual unlawfulness.
Why It Matters
This judgment clarifies the boundaries of judicial review remedies, particularly advisory declarations. While environmental and administrative law challenges often raise important questions of general application, courts will not grant declarations on hypothetical scenarios—even where substantive legal agreement exists among the parties. The decision reinforces that judicial review is fundamentally about resolving disputes concerning actual or proposed action by public authorities, not answering abstract legal questions.
The judgment also reflects broader principles about the proper scope of judicial review: permission to proceed at the permission stage is tied to demonstrating arguable unlawfulness in the pleaded claim, and parties cannot fundamentally restructure the nature of their challenge by shifting from factual allegations to hypothetical scenarios. However, the court’s “no order as to costs” decision suggests recognition that the claimants had raised a genuine issue of legal significance (whether policy considerations about Natural England’s institutional interests were irrelevant), which ultimately shifted NE’s own legal position during the litigation.