Derwent Holdings Ltd v Liverpool City Council

Statutory procedures for making a traffic regulation order require adequate publicity to persons likely to be affected, including an affected landowner. An authority cannot avoid that obligation by relying on ordinary practice where it knows, or should know, of the person’s interest.

An ouster clause preventing challenges after the statutory period remains effective even where defective notice prevented a timely challenge. Bad faith does not disapply the clause. The affected person may instead have remedies such as damages, a declaration of procedural non-compliance, or consideration of a modification to the order.

The claimant owned a retail park affected by a traffic regulation order made by Liverpool City Council under the Road Traffic Regulation Act 1984. The order permanently closed gaps in the central reservation of Edge Lane and altered access to the retail park.

The claimant was not properly notified of the proposed or completed order and learned of it only after the six-week challenge period had substantially expired. It sought to quash the order, alleging failures to comply with the statutory publicity requirements and bad faith. It also argued that the ouster provision in Schedule 9 was incompatible with article 6 of the Convention.

1. The claim was arguable despite the delay, and the court proceeded to determine the substantive issues. The Council had failed to comply with the publicity requirements in regulation 7 and regulation 17 of the 1996 Regulations. The claimant was a person likely to be affected and should have been notified. The targeting of publicity and the notices displayed were also insufficient.

2. The court rejected the allegation of bad faith. The evidence showed an approach designed to do no more than was thought necessary to avoid delay and objections, but it did not establish a deliberate or reckless disregard of the legal obligations. Bad faith was in any event unnecessary to the remedy sought.

3. Paragraph 37 of Schedule 9 remained effective. Following Smith v East Elloe District Council [1956] A.C. 736, and its application in R v Secretary of State for the Environment ex p. Ostler [1977] 1 QB 122, the validity of the order could not be challenged outside the statutory procedure. The position was unchanged where defective notice caused the failure to challenge in time. The court also relied on R(Deutsch) v London Borough of Hackney [2003] EWHC 2692 concerning the importance of certainty in such orders.

4. The ouster provision did not breach article 6. Assuming that the claimant’s civil rights were engaged, its access to court had not been impaired in a way that affected the very essence of that right, applying the test in de Geouffre de la Pradelle v France [1992] ECHR 12964/67.

5. A claim for damages could be brought if loss resulted from the procedural breach, and proven bad faith could support misfeasance in public office and aggravated or exemplary damages. A declaration of non-compliance would not challenge the order’s validity but could require the Council to consider modification properly and bear the cost of modifications which would have resulted from timely objections. The precise remedy was reserved for further argument.

First-instance judicial review proceedings in the Administrative Court. The court granted permission and treated the rolled-up hearing as the substantive hearing. The precise remedy was left for further argument.