Selter Associates Ltd, R (on the application of) v Leicestershire County Council

Where a statutory power is delegated subject to the concurrence of a senior officer, valid concurrence requires an active consideration of both the legal requirements and whether the proposed decision is appropriate as a matter of discretion. Processing an order, checking legal requirements or signing documents does not itself establish that concurrence. A regular course of practice may evidence delegation only where the delegated function actually includes forming the required opinion. An unlawful traffic order should ordinarily be quashed. Allowing it to remain in force is a truly exceptional course.

The claimant challenged a temporary traffic order made by the defendant under Road Traffic Regulation Act 1984, section 14. The order altered the area covered by an existing 7.5-tonne weight restriction, affecting heavy vehicles delivering material to the claimant’s golf-course development.

The defendant’s scheme delegated the power to make temporary restrictions to the Director of Highways, subject to the concurrence of the Chief Executive. The issue was whether that concurrence had lawfully occurred through successive delegations to officers in the County Solicitor’s Department who prepared and processed traffic orders.

1. Judicial review allowed. The 2004 Order was unlawful and was to be quashed. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment if not agreed.

2. Valid concurrence required consideration not merely of whether the legal requirements for an order under section 14 of the Road Traffic Regulation Act 1984 had been met, but also whether making the order was appropriate as a matter of discretion and on its merits.

3. The evidence did not show that any officer had applied their mind to whether they should concur in the making of the order on behalf of the Chief Executive. The officers’ function was to prepare and process traffic orders. That was materially different from deciding whether the Chief Executive’s approval should be given.

4. The principle that actual delegation may be shown by a regular course of practice did not assist the defendant. Such a practice can establish delegation only where the relevant officer’s function necessarily includes forming the opinion required by the legislation. A legal checklist and administrative processing did not perform that function.

5. The constitutional provision authorising the County Solicitor to act in the Chief Executive’s absence meant absence in the ordinary sense. It did not authorise the County Solicitor to act whenever it was thought undesirable for the Chief Executive to be involved. In any event, the material did not establish a general or specific delegation of the power to concur.

6. The court declined to leave the unlawful order in force. That was a truly exceptional course. The possibility that the Council might promptly make a fresh order did not justify it, particularly because the Council’s approach to concurrence required reconsideration and the outcome of a properly conducted process could not be assumed.

7. Permission to appeal was refused. Whether the judgment affected other orders or cases would depend on the facts of those cases.

First-instance judicial review. Permission to appeal was refused by the High Court.