England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		20 October 2005

1. MR JUSTICE WALKER: By this application the claimant challenges the Leicestershire County Council (Station Road (Part) Market Bosworth)(Temporary Suspension of 7.5 Tonnes Weight Restriction) Order 2004, which I shall call "the 2004 Order". The 2004 Order was purportedly made by the defendant, Leicestershire County Council, on 23 December 2004. It is necessary to say something about how that came about.
2. The claimant occupies land adjacent to Station Road on the outskirts of Market Bosworth in Leicestershire, where with the benefit of planning permission he is developing the land as a golf course. The defendant is the Local Traffic Authority for the purposes of the Road Traffic Regulation Act 1984 and the Road Traffic (Temporary Restrictions) Procedure Regulations 1992. In order to achieve the necessary contours to the land, the claimant imports inert material, which is delivered to the site by heavy lorries. The entrance to the site on Station Road is about half a mile to the west of Market Bosworth.
3. At the time planning permission for this development was granted, and indeed afterwards, there was in force the Leicestershire County Council Prohibition on Commercial Vehicles over 7.5 tonnes (Various Parishes) (Western Division) Order 1990, which I shall call "the 1990 Order". This prohibited vehicles over 7.5 tonnes from entering and passing through the area to which it applied unless the vehicle had a destination within it. Both Market Bosworth and the road network leading to Station Road, up to the point on Station Road where the entrance to the claimant's land is found, lay within the material area. Accordingly, lorries travelling to bring the inert material from the east were able to come through Market Bosworth. For reasons which I need not go into at the moment, there was concern about these lorries travelling through Market Bosworth. That led to the purported making of the 2004 Order.
4. What the 2004 Order did was to remove the entrance to the claimant's land from the area covered by the 1990 Order, with the result that lorries coming from the east could not go through Market Bosworth as they were not going to a destination within the relevant area. The claimant has said, and this has not been put in dispute, that an important component of the development and funding for the golf course is a charge it levies for the deposit of the inlet material, and that the substantial additional costs which arise because lorries cannot go through Market Bosworth have severely affected the ability of the claimant to fund its proposed development in this way, because those who otherwise would being willing to pay to deposit material are significantly less willing to do so if they cannot travel through Market Bosworth. It is in that context that a question of law arises as to the way in which the defendant goes about making orders of the kind of the 2004 Order.
5. It is accepted on the part of the claimant that it is open to the defendant to provide for such orders to be made as a matter of principle under delegated powers. It is also accepted by the claimant that the scheme of delegated powers adopted by the defendant lawfully provides that temporary prohibitions or restrictions of traffic on roads under section 14 of the Road Traffic Regulation Act 1984 -- the statutory provision governing the 2004 Order -- has been delegated to the Director of Highways, Transportation and Waste Management, subject to the concurrence of the Chief Executive. The issue on which permission to apply for judicial review has been given is whether, in the circumstances of this case, there has been any lawful concurrence by the Chief Executive to the making of the 2004 Order.
6. The defendant lodged evidence in that regard. It is found in a witness statement of Richard Boam, who is the Assistant Head of Legal Services, employed in the legal section of the County Solicitor's Office of the Chief Executive's Department of the defendant. Paragraphs 11 to 13 provide:

"11. The Defendant's general scheme of delegation contained at Part 3 of the Defendant's Constitution provides at Section D(c) that in respect of the Proper Officer functions and other delegated powers and functions allocated to the Chief Executive and County Solicitor the following officers be authorised to act in their absence; County Solicitor (in the absence of the Chief Executive), Assistant Chief Executive (Corporate Support), Assistant Chief Executive (Community Planning), Head of Democratic Services and Administration, Head of Human Resources and Head of Legal Services. I produce marked 'RB4' a copy of section D of the General Scheme of Delegation to Heads of Departments.

12. Paragraph 6 of the General Scheme of Delegation to Heads of Departments provides that any delegation to a Head of Department may be exercised on his or her behalf by any officer authorised by him or her generally or specifically for the purpose.

13. In making the Order the Chief Executive delegated his concurrent powers to the County Solicitor pursuant to the Scheme of Delegation who in turn has delegated her powers under the provisions of Paragraph 6 of the General Scheme of Delegation to the officer employed in the County Solicitor's Department who made this particular Order and who is one of six officers whose terms of employment are to prepare and process Road Traffic and Footpath Diversion Orders."

7. Mr Giles' main point on behalf of the claimant is that the procedure described in paragraphs 11 to 13 does not describe any person actually performing the task of considering on behalf of the Chief Executive whether it is right to concur in the making of the order. In that regard, he says that it is plainly the intention of the defendant when saying that the power of the Director of Highways to make such an order is subject to the concurrence of the Chief Executive, that there should be some active process in order to give rise to such concurrence. It seems to me that in order for there to be a valid concurrence, there would have to be consideration not just of whether the legal requirements for making an order of this kind had been met, but whether it was appropriate to do so as a matter of discretion.
8. Mr Brown, who appeared for the defendant, did not submit otherwise. His submission was that concurrence had occurred by the procedure described in paragraph 13, under which one of six officers, whose terms of employment are to prepare and process Road Traffic and Footpath Diversion Orders, performs that officer's function in the County Solicitor's Department. There are obvious difficulties lying in the path of this submission, and Mr Brown did not shrink from them. The first difficulty to my mind is that the Council plainly attached importance to the concurrence of the Chief Executive. Assuming for present purposes that it was open to the Chief Executive to delegate that concurrence, and assuming for present purposes that the Chief Executive did delegate the exercise of power to concur, one would have expected the Council to have produced some evidence that an individual had applied his or her mind to the question: should I concur in the making of this order on behalf of the Chief Executive on the basis that making this order is a proper exercise of discretion, not merely in the legal sense, but on the merits? There is nothing to suggest that anybody performed that function.
9. Mr Brown told me on instructions that what happens is that the responsible official in the Highways Department decides that the order should be made and instructs that the County Solicitor's Department should process it. I can well understand that there will be an officer, who need not be at a particularly high level, who identifies the legal questions which arise and drafts the order, and if satisfied that a checklist of legal requirements have been met, arranges for publication of the order, signed by the County Solicitor. It would be very surprising indeed if such a person had delegated powers to consider whether, as a matter of discretion, the order was one which should or should not be made. There is no suggestion that there was anything in the checklist along those lines, and I would be very surprised indeed if there were.
10. In those circumstances, nonetheless, Mr Brown says that he can derive assistance from the approach of principle found in the well-known case of Provident Mutual Life Assurance Association v Derby City Council [1981] 1 WLR 173. Mr Brown helpfully took me to extracts from that decision, quoted by Schiemann J (as he then was) in Cheshire County Council v Secretary of State for the Environment [1988] JPL 30. Those cases establish that actual delegation can be shown by a regular course of practice. In the context of the Provident Mutual case it was sufficient that the officer in question had the job of implementing resolutions of the Council about the rating of unoccupied buildings. On the facts of that case, inevitably that meant that there was authorisation to form the opinion required by the relevant legislative provision.
11. In this case, however, there is nothing to suggest that the officers in the County Solicitor's Department had a job description which required them to do anything other than act as lawyers. Mr Boam says that their terms of employment were to prepare and process Road Traffic and Footpath Diversion Orders. That task is a completely different task from the important role of considering whether the Chief Executive's approval should be given to what is proposed. Thus, on the nub of Mr Giles' argument, I am satisfied that there was no concurrence on the part of the Chief Executive in this case, even assuming that such concurrence could be delegated.
12. That was not the only string to Mr Giles' bow. Mr Boam's statement at paragraph 11 noted that the particular delegation under section D(c) referred to the County Solicitor acting on behalf of the Chief Executive in the absence of the Chief Executive. There is a question mark as to precisely what status the record found at sub-paragraph (c) actually has. Assuming it to be a resolution of the Council or in some other way a decision which is to be regarded as a decision of the Council, I consider that the specific reference to a power to act in the absence of someone else means what it says, that is to say, if the Chief Executive is not available at the time that the matter needs to be dealt with, then the County Solicitor can act. If, as Mr Brown contends, it means simply that the County Solicitor can act on those occasions when the County Solicitor does not think it desirable for the Chief Executive to be involved, it seems to me that different and more apt words would have been used.
13. A further aspect of Mr Giles' argument concerned the general provision for delegation in section 3, paragraph 6, as quoted by Mr Boam in paragraph 12 of his witness statement. This provides that any delegation to a Head of Department can be exercised "on his or her behalf by any officer authorised by him or her generally or specifically for the purpose". It is not clear to me from the material produced by the Council that the Chief Executive has either generally or specifically delegated to anybody the power of concurring in the making of a Road Traffic Regulation Order.
14. In those circumstances, it appears to me that the 2004 Order is unlawful and it would ordinarily follow from that that it must be quashed.
15. It is submitted by Mr Brown that the court as a matter of discretion should decline to quash the order. Instead it should allow an unlawful order to remain in force. The reason put forward in Mr Brown's skeleton argument is that there is no jurisdictional bar which could prevent the defendant from immediately remaking the order. The reasons for making the order remain. The defendant is committed to restricting the traffic bringing construction materials to the claimant's property through Market Bosworth, and it is inevitable that if the order is quashed, the defendant will immediately exercise its powers to make a fresh order.
16. Despite what is said there, Mr Brown was at pains to assure me that the defendant did not have a closed mind. Allowing an unlawful order to remain in place is a truly exceptional course. I do not regard the circumstances put forward by Mr Brown as circumstances which would make it appropriate to take such an exceptional course. In particular, so far as I can discern from the evidence before me, until consideration of this judgment, the stance on the part of the Council has been that in some way it is a lawyer entrusted with going through a checklist who is to be regarded as the person who gives consent on behalf of the Chief Executive to the making of the order. That is an approach which will call for reconsideration in the light of this judgment. It would be quite wrong to assume that the outcome will be the same. In any event, as a matter of elementary legal principle, it will be for the Council to apply its mind to the relevant questions, not at the moment after I have given judgment, but after going through the proper procedures that are required to be gone through before a fresh order can be made.
17. In those circumstances, I do not consider it appropriate to exercise my discretion in the way it has been suggested by Mr Brown. Accordingly, I shall allow this judicial review and I shall hear submissions on the appropriate orders that I should make.
18. MR GILES: My Lord, I ask my Lord to quash the 2004 Order, if I may use your Lordship's expression, and for an order that the defendant pay the claimant's costs, such costs to be fully assessed if not agreed.
19. MR JUSTICE WALKER: Subject to detailed assessment, if not agreed. Mr Brown?
20. MR BROWN: My Lord, I cannot resist either of those. There has been no exchange of costs schedules by other side in this case, so I think the order has to be detailed assessment if not agreed. My Lord, I am instructed to ask for permission to appeal. In the light of the way your Lordship has put the judgment, I am not going to invite your Lordship to conclude that I have an arguable chance, but there are certain things that your Lordship has said in relation to the constitution which are of relevance not just to the facts of this particular case, but also to the way in which it bears on the way the defendant acts in the future, but also may well have some bearing on a number of orders that may have been made, not just recently but over a number of years. In my submission there is some public importance (inaudible). That is the basis to ask for permission to appeal, and I put it at this stage on a protective basis because my client has to go away and consider very carefully what your Lordship has said.
21. MR JUSTICE WALKER: I quite understand. There is a form that I need to fill in.
22. What I have written on the form is that I consider it clear that the procedures adopted by the defendant on the evidence in this case did not involve anyone applying their mind to the question whether it was appropriate to concur in the making of the order on behalf of the Chief Executive. Whether this or any other matters in my judgment will affect other cases will turn on the facts in those cases. For those reasons, I refuse leave to appeal.