Deutsch, R (On the Application Of) v Hackney

An ouster provision governing designation orders excludes later judicial review challenges once the statutory challenge period has expired. The court must assess the challenge by reference to the statutory grounds and procedure. A challenge alleging that the officer who made the order lacked authority is a challenge that the order was not within the relevant powers. It must therefore be brought within six weeks of the order being made. After that period, the order cannot be questioned in legal proceedings, even where the alleged defect concerns the authority of its maker.

The claimant sought judicial review of a designation order made by Hackney under the Road Traffic Regulation Act 1984. The challenge alleged defective consultation, failures to take relevant equality and human rights matters into account, an improper revenue-raising purpose, and lack of authority in the officer who made the order.

During the hearing, the parties agreed that the court should assume that the officer had not been properly authorised. The central issue was whether Part VI of Schedule 9 nevertheless barred the claim because it was brought more than six weeks after the order was made.

1. The application for judicial review failed, subject only to any further argument concerning compatibility with the Human Rights Act 1998.

2. Sections 124 and 142 and Part VI of Schedule 9 to the Road Traffic Regulation Act 1984 establish a specific procedure for questioning the validity of designation orders. A challenge must be brought within six weeks of the order being made and must rely on the statutory grounds.

3. The relevant grounds include that the order was not within the relevant powers or that a relevant statutory or regulatory requirement was not complied with. The ouster provision does not distinguish between different degrees or grounds of invalidity.

4. Following the approach in R v Cornwall CC ex parte Huntington and another [1992] 3 All ER 566, and its application in R v Devon CC ex parte Isaac and another [1994] 1 All ER 694, the statutory scheme gives priority to certainty once the prescribed period has expired.

5. The reasoning in Smith v East Elloe Rural District Council and others [1956] AC 736 supported the conclusion that an order does not bear an apparent brand of invalidity merely because it is alleged to have been made without authority. The order was signed by the officer holding the relevant post and purported to identify him as the appointed officer.

6. R v East Sussex CC ex parte Reprotech (Pebsham) Ltd [2002] UKHL 8 did not assist the claimant because that decision did not concern an ouster of jurisdiction clause.

7. The claim was therefore barred by Part VI of Schedule 9 and could not thereafter be questioned in legal proceedings.

This was a first-instance judicial review claim. Permission was initially refused by Maurice Kay J on the papers, but Jackson J granted permission after an oral hearing and ordered standard disclosure. The claim was subsequently amended and heard by Hooper J.