Deutsch, R (On the Application Of) v Hackney

By a claim form filed on 10 April 2003 the claimants sought judicial review of a “designation order” made by the defendant under section 45 of the Road Traffic Regulation Act 1984, designating controlled parking zones in the Brownswood and Lordship wards of the defendant Borough and yellow line waiting restrictions. The claimants allege misleading and inadequate consultation and a failure conscientiously to take into account the product of the consultation. Complaint is also made of what was said to be a failure to have sufficient regard to provisions of the Race Relations Act 1976, the Disability Discrimination Act 1998 and the Human Rights Act 1998 (“HRA”).

On 6 May the defendant served an acknowledgement of service and summary of grounds for contesting the claim. Ten days later Maurice Kay J refused permission on the papers, stating that the document annexed to the acknowledgement of service was: “a complete answer to this application and the contrary is not arguable”.

On 14 July Jackson J granted permission following an oral hearing, ordering the defendant to give standard disclosure within fourteen days. Following receipt of disclosed documents, the claimants amended the claim form to include an allegation that the challenged decision was made for an improper purpose, namely to create revenue. Subsequently the case was set down for hearing on 10 November with a time estimate of 1.5 days.

On 30 October the defendant’s solicitors wrote to the claimants’ solicitors drawing the latter’s attention to Part VI of Schedule 9 of the Road Traffic Regulation Act 1984 (B/3/208). Part VI contains an ouster of jurisdiction provision, the effect of which is that a designation order can only be challenged by an application made to the High Court within six weeks of the date of making of the order. The letter stated that the challenged order had been made on the 20 January 2003, that a copy had been placed in the London Gazette of 22 January 2003 and that the proceedings were out of time. The claimant’s solicitors received a copy of the order on 3 November. In a letter dated 3 November they complained about late disclosure and requested a copy of the authority for the order and a copy of the entry in the London Gazette. That request was made again on 4 November. On 5 November the Director of Law and Probity for the defendant wrote (B/3/:215):

“The decision in question is documented in bundle 1, as follows:-

The cabinet report of 4 November 2002 commences at p36. You will note on p37 the recommendations to approve the plan and to delegate consultation and procurement to the Director of Community and Learning [Mr Hook] in consultation with the lead member [Councillor Stops].

The delegated report of 9 January 2003 commences at p60. Para 3.2 authorises officers to make the necessary Traffic Orders under s. 45.”

On 7 November the Director of Law and Probity sent an undated “Scheme of Delegation” without further details and a “Protocol for Officer Delegations and appendices” (B/3/216-226). In the Scheme the post of the person said to have the authority to make various orders, including orders relating to controlled parking zones, was the Assistant Director, Planning and Transportation.

I turn to the challenged order. It is described as a Traffic Management Order and is given the name “The Hackney (Parking Places) (Amendment) (No 7) Order 2002. Although it is described as a 2002 order, the order states that it was made on 20 January 2003, to come into force on 27 January. The first paragraph reads as follows: “The Council of the London Borough of Hackney having consulted the Commissioner of Police for the Metropolis, in exercise of the powers conferred by Sections 6, 45, 46, 49 and 124 of, and Part IV of Schedule 9 of the Road Traffic Regulation Act 1984 and all the other enabling powers, hereby make the following order …”

The order then sets out in detail the areas being designated as parking places, the permitted hours, the charges for permits and the charge for parking without a permit. At the end of the order is to be found the following:

“Tom McCourt

Assistant Director (Planning and Transportation)

(The officer appointed for this purpose)”

During the hearing, Mr Supperstone QC, who appears for the claimants, accepted that if Part VI effectively barred these proceedings, then that was the end of the matter, subject to a possible HRA incompatibility argment which he might wish to raise later.

Mr Supperstone QC analysed in some detail the Cabinet report of the 4^th November and the delegated report of 9 January referred to by the Director of Law and Probity in his letter of 5 November. He submitted that the Cabinet did not, on 4 November, authorise Mr McCourt to do other than what was described in the report as “consultation and procurement.” When Mr Straker QC for the defendants turned to the issue of delegated authority in his reply, he did not seek to rely upon the documents referred to in the 5 November letter. Instead he relied upon the documents which had been attached to the 7 November letter to show that Mr McCourt was duly authorised to make the order. Given that the claimants were (following the disclosure of documents on and after November 3) taking a point not foreshadowed in the claim form, I asked Mr Straker whether the defendant wished to submit evidence to explain the Scheme and to support his submission that Mr McCourt was duly authorised. After some hesitation he said that he did not wish to do so. Subsequently, however, during the course of argument he asked me to decide whether or not the defendants were prevented from bringing this claim because of the provisions of Part VI of Schedule 9 even if Mr McCourt did not have the necessary authority. If I were to rule in the defendant’s favour, he would not wish to present any further evidence. If I ruled against the defendant on this issue, he would then wish to present evidence to substantiate the submission that Mr McCourt did have authority. With Mr Supperstone’s consent, I agreed to this course.

During the hearing a copy of the notice in the London Gazette to which the letter of the 31 October had referred was finally produced. That turned out to be a strange document. Although it purported to summarise the effect of the order (with some errors), it stated that the order had been made on the 23 December and that it would come into force on the 13 January. That led to an analysis by counsel of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 (SI 1996 No 2489) which set out the procedures for the making of orders such as the challenged order. Although it is arguable that the defendants had not complied with the requirements in the regulations regarding publication of an order (see regulation 17), Mr Supperstone, sensibly if I may say so, abandoned any argument that the absence of proper publication would have the effect of making the order susceptible of being quashed in judicial review proceedings. Given the way that the arguments had developed, it was agreed, by the end of the hearing, that I should assume that Mr McCourt had not been properly authorised to make the order which he did.

Mr Supperstone submitted that, absent any authority to make the order, Part VI of Schedule 9 had no application. Mr Straker submitted that the order was “a seemingly valid order” and therefore by virtue of Part VI Schedule 9 it was now too late to make the challenge. He accepted that the position might be different if the order had been signed by “Mickey Mouse”.

Against that background I turn to the provisions of the Act and in particular of Part VI. I start with the provisions of the Act which are cited in the challenged order. By virtue of Section 6 a local authority in Greater London may make an order for controlling or regulating vehicular traffic. By virtue of section 45 a local authority is empowered by order to “designate parking places on highways” and to “make charges … for vehicles left in a parking place so designated”. Section 142 defines a “designation order” as including an order under section 45. Section 45 (3) sets out a non-exclusive list of matters to which a local authority shall have regard when making such a designation order. Section 46 deals with the charges which may be prescribed. The effect of section 124 is that Part VI of Schedule 9 “shall have effect as to the validity of ... designation orders.”

I turn now to Part VI of Schedule 9. Paragraph 34 provides that “this Part of the Schedule applies to ... any designation order”. Paragraph 35 states that if any person desires to question the validity of (amongst other things) a designation order:

“on the grounds-

(a)

that it is not within the relevant powers, or

(b)

that any of the relevant requirements has not been complied with in relation to the order,

he may, within six weeks from the date on which the order is made, make an application for the purpose to the High Court”

Paragraph 34(2) defines the two expressions “relevant powers” and “relevant requirements”. Stripping out the inessential, “ the relevant powers” in relation to a designation order, means “the powers of sections 45, 46 …of this Act”. The expression “the relevant requirements” “in relation to a designation order, means any requirement of section 45, 46… of this Act … or of any regulation made under Part III of this Schedule.” The 1996 Regulations to which I have referred were made under this Part.

Paragraph 36 gives the court, on an application made under this Part of the Schedule, the power to quash the order or any provision of the order “if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements”. Thus, even if an applicant were able to show that there had not been publication of the proposed order or of the order itself, the applicant would still only succeed if his interests had been “substantially prejudiced” by the failure.

Paragraph 37 provides:

“Except as provided by this Part of this Schedule, an order to which this Part of this Schedule applies shall not, either before or after it has been made, be questioned in any legal proceedings whatever.”

Similar ouster provisons are to be found in many statutes which enable ministers or the local authorities to make orders. Given that the implementation of such orders may well involve the authorities in considerable expenditure (as in this case) or may be relied upon by private persons, the legislative intention “is that questions as to invalidity may be raised on the specified grounds in the prescribed time and in the prescribed manner, but that otherwise the jurisdiction of the court is excluded in the interest of certainty”, per Mann LJ in R v Cornwall CC ex parte Huntington and another [1992] 3 All ER 566 at 575. This passage was quoted “with respectful approval” by the Court of Appeal when deciding both the appeal in that case and in R v Devon CC ex parte Isaac and another, [1994] 1 All ER 694, at 699. The issue for the Court of Appeal was whether a provision in the Wildlife and Countryside Act 1981, very similar to the provision in this case, operated as a jurisdictional bar to decisions being challenged by way of judicial review. The Act provided for the making of a “modification order”, the effect of which was to make an interim variation of the definitive map and statement. Once such an order had been made, then there were procedures which had to be followed before the order could be confirmed. In both cases, prior to any such confirmation, applications for judicial review have been initiated challenging the modification orders. In the Devon appeal it was assumed by the Court of Appeal for the purposes of the appeal that there were substantial procedural defects in the process leading up to the making of the order (page 699). Simon Brown LJ, with whose judgment the other two members of the court agreed, held that the ouster provision precluded the two applications for judicial review. Until such time as a modification order had been confirmed there could be no legal challenge and after confirmation any order could not be challenged otherwise than by the procedure laid down in the Act. This required an application to be made to the High Court within 42 days.

Mr Supperstone submits that the ouster provision did not apply because the defendant had failed to show that Mr McCourt had been properly authorised to make the order. Section 45 of the Act gives the local authority the power to make a designation order and the defendant authority had not shown that it had made the order. Mr Straker, on the other hand, submitted that the Part VI of Schedule 9 prevented any attack on an order for lack of authority unless brought within the six week period.

Mr Straker relied upon a passage in the Cornwall case, quoted by the Court of Appeal with approval (page 699), in which Mann LJ said:

“The language does not admit of differentiations between degrees (if such there be) or grounds of invalidity, nor does it admit of differing constructions according as to whether the decision to make an order is judicial or administrative in character.”

Mr Straker pointed out that in the Devon case it was assumed that there were substantial procedural defects, but nonetheless the ouster provision applied. He also relied upon the decision of the House of Lords in Smith v East Elloe Rural District Council and others [1956] 1 All ER 855; [1956] AC 736 (769-770). The issue in that case was whether a compulsory purchase order which, it was said, had been made and confirmed “wrongfully and in bad faith” fell outside the ouster of jurisdiction provison. By a majority of three to two the House of Lords held that a challenge of this kind had to be made in accordance with the statutory procedure for challenge and, if not made in accordance with that procedure, could not otherwise be made. In the words of Lord Radcliffe (page 871):

“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”

Mr Straker also relied upon another passage in the Cornwall and Devon cases in which Simon Brown LJ said that the effect of the ouster of jurisdiction clause may have:

“the unfortunate consequence of denying a person aggrieved any possibility of challenge at all, either because he does not discover the grounds for challenging the decision until after the statutory period has elapsed … or, indeed, because he does not even learn of the decision until after it is too late to challenge it.” (Page 700).

Mr Straker submits that the claimants’ attack on the order as being one made without authority is a challenge to the validity of a designation order “on the grounds- (a) that it is not within the relevant powers”, being the words used in paragraph 35 of Part VI.

Mr Supperstone relied on a passage from the speech of Lord Hoffmann in R v East Sussex CC ex parte Reprotech (Pebsham) Ltd [2002] UKHL 8, [2002] 4 All ER 58, at paragraph 27. The issue in that case was whether or not a resolution of a sub-committee of the defendant local authority constituted a “determination” for the purposes of section 64 of the Town and Country Planning Act 1990. Section 64 enabled a person, wishing to know whether planning permission was necessary, to apply to the local authority to determine that question. The House of Lords held that the resolution did not constitute a determination. Lord Hoffmann said:

“Such a determination is a juridical act, giving rise to legal consequences by virtue of the provisions of the statute. The nature of the required Act must therefore be ascertained from the terms of the statute, including any requirements prescribed by subordinate legislation …”

Mr Straker submits, and I agree, that this does not assist the claimant in this case. The House of Lords was not concerned with an ouster of jurisdiction clause.

Mr Straker argues that the challenged order was a “seemingly valid order”. Mr Supperstone denies the existence of such a “creature”, my words not his. In the language of Lord Radcliffe in the Smith case, it seems to me that this order “bears no brand of invalidity on its forehead.” The order was signed by Mr McCourt and there is no dispute that he was at the appropriate time the Assistant Director (Planning and Transportation). The order recites that he was the officer appointed for the purpose of making the order. The notice in the London Gazette is above his name, albeit that there are differences between the order as summarised in the Gazette and the order as signed by Mr McCourt.

In the light of the wording of paragraph 35 and the authorities on ouster provisions to which I have referred, it seems to me clear that a challenge to the authority of the maker of the determination is a challenge which must be made using the Part VI procedure and within six weeks of the making of the order. If not made within six weeks, the designation order cannot thereafter “be questioned in any legal proceedings whatever”.

For these reasons this application for judicial review fails, subject only to any further argument on the issue to which I have referred in paragraph 8 of this judgment.