Halton Borough Council, R (on the application of) v Road User Charging Adjudicators

A statutory definition of procedural impropriety may encompass failures occurring after representations have been filed, including failures concerning their consideration and notices of rejection. The statutory ground is confined to failures to observe requirements imposed by the relevant legislation; it does not create a general jurisdiction to review public-law fairness, reasonableness or adequacy.

Delegation of the charging authority’s representations function was lawful where authorised by the express concession-agreement power in the applicable bridge order. Applying business rules is not necessarily unlawful fettering. A procedural impropriety based on fettering requires a complete failure to consider the representations. Inaccurate additional information in a notice of rejection does not automatically amount to procedural impropriety.

The Council operated a road user charging scheme for the Mersey Gateway and Silver Jubilee Bridges. Appeals against penalty charge notices were allowed by the Road User Charging Adjudicators in a Joint Determination and Review Decision concerning 17 penalty charge notices and 11 test cases.

The Adjudicators found procedural improprieties based on alleged delegation of the duty to consider representations, rigid application of business rules, and misleading costs information in notices of rejection. The Council sought judicial review. The principal issues were whether procedural impropriety could arise after representations were filed, whether the challenged arrangements were unlawful delegation or fettering, and whether the costs information breached the statutory scheme.

1. Jurisdiction. The claim was allowed in part. Procedural impropriety under regulation 8(3)(g) of the Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013 is not temporally confined to failures occurring before representations are filed. The same statutory ground applies dynamically at the appeal stage under regulation 11(6). Failures to comply with the duty in regulation 8(9), or the information requirements in regulation 10(1), may therefore constitute procedural impropriety.
2. Where the charging authority fails to comply with regulation 8(9), regulation 8(10) may deem the representations accepted. In such a case the penalty charge is not payable for the purposes of regulation 8(3)(e). This provides an alternative route where there has been no consideration of duly made representations.
3. Delegation. The relevant function was the duty to consider representations and decide whether a statutory ground or compelling reasons existed. Article 43 of the River Mersey (Mersey Gateway Bridge) Order 2011, read with articles 2 and 42A, expressly authorised delegation of the charging authority’s powers and obligations under the Regulations through a concession agreement. Article 42A(6) restricted transfer of the scheme-design powers, not the subsequent functions under the Regulations. The Adjudicators were therefore wrong to find unlawful delegation. The three cases referred to the Escalation Panel involved consideration and decision by a Council representative and did not establish unlawful delegation.
4. The regulation 8(9) function was not a judicial function requiring an implied restriction on the express power of delegation. Independent adjudication under regulation 11 supplied the judicial safety-net.
5. Fettering. The rule against fettering prohibits rigid application of a policy without considering whether the case is exceptional. It is distinct from delegation. Applying pre-determined responses to familiar, objectively determinable scenarios is not, of itself, unlawful fettering. For procedural impropriety under the statutory definition, there must be a complete failure to consider the representations. The test cases did not establish such a failure. The Case 7 notice showed that the representations had been read and addressed.
6. Costs information. The costs wording was incomplete and misleading, but regulation 10(1)(b) required only an indication of the adjudicator’s power to award costs against the appellant. That requirement was satisfied. Information concerning costs in favour of the appellant fell within the discretionary power in regulation 10(2). An unreasonable exercise of that discretion was a public-law issue, not necessarily a statutory procedural impropriety.
7. The Joint Determination and Review Decision were quashed in Cases 2–11. No quashing order was made in Case 1 because it had been allowed on an unchallenged independent ground. There was no order as to costs concerning Mr Curzon, and no order as to costs was made generally against the Adjudicators.

This was a first-instance judicial review in the Administrative Court. The court quashed the Joint Determination and Review Decision in Cases 2–11, but refused relief in Case 1.