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

This judgment addresses whether adjudicators were entitled to allow test-case appeals against penalty charge notices under the Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) Regulations 2013 on grounds of "procedural impropriety". The court concluded that: (1) the statutory concept of "procedural impropriety" in regulation 8(3)(g) can cover failures occurring after representations are made (for example failures in considering representations or in the form of a notice of rejection), and therefore may be relied on at appeal under regulation 11(6); (2) where regulation 8(10) (deeming acceptance after failure to comply with regulation 8(9)) applies, that may provide an alternative basis under regulation 8(3)(e) that no road user charge or penalty charge is payable; but (3) the court rejected the adjudicators' conclusions that there had been a procedural impropriety in this case arising from unlawful delegation of the regulation 8(9) function, from unlawful fettering through the Council's Business Rules, or from misleading costs information in the notices of rejection. The court quashed the Joint Determination and Review Decision in relation to Cases 2–11 but not Case 1.

Background and parties. The claimant is Halton Borough Council, the charging authority for a road user charging scheme applicable to two bridges across the River Mersey. The defendant is the body of road user charging adjudicators; the interested party (appellant before the adjudicators) is Mr Damian Curzon. The appeals followed a series of penalty charge notices (PCNs) issued after crossings of the Mersey Gateway and Silver Jubilee bridges. Several prior adjudicator decisions (including a notable decision called "Curzon No.1") had found in favour of Mr Curzon on the basis of procedural impropriety.

Nature of the application. Judicial review of the adjudicators' Joint Determination and Review Decision was pursued by the Council. The Council challenged adjudicators' findings that appeals should be allowed on grounds of procedural impropriety because: (i) the Council had unlawfully delegated its regulation 8(9) duty to a private contractor (Emovis/Operatives); (ii) the Council had unlawfully fettered its discretion by using pre-determined "Business Rules" applied by contractors; and (iii) notices of rejection (NoRs) contained misleading "costs" information.

Procedural posture. This is a first-instance determination in the Administrative Court. The Joint Determination had consolidated 11 test appeals concerning 17 PCNs. The Council sought quashing of the adjudicators' decisions; the adjudicators and interested party defended the determinations.

Issues framed by the court.

• Whether the term "procedural impropriety" in regulation 8(3)(g) can include matters occurring after representations are filed and therefore can be invoked on an appeal under regulation 11(6).
• Whether a failure by the charging authority to comply with regulation 8(9) could alternatively amount to a ground under regulation 8(3)(e) where regulation 8(10) deems representations accepted.
• Whether the adjudicators were entitled to find procedural impropriety because the Council had delegated consideration of representations to a third party, had unlawfully fettered discretion through "Business Rules", or had issued misleading costs information in NoRs.

Court's reasoning and findings. The court held that the regulations must be read dynamically: a "procedural impropriety" is defined as a failure to observe any requirement imposed by the Transport Act 2000 or the Regulations, and that can include failures arising after representations are lodged. The court agreed that regulation 8(10) can operate so that, where a charging authority fails to comply with regulation 8(9), the representations are deemed accepted and cancellation follows, so that regulation 8(3)(e) may apply.

However, the court rejected the adjudicators' core factual and legal conclusions on the three alleged procedural improprieties. On delegation: the court found an express power in the enabling bridge legislation (Article 43 read with Article 42A and Article 2 of the relevant Orders) permitting the undertaker to enter concession agreements enabling another person to exercise powers in respect of authorised activities, and that this permitted the lawful delegation of the operative functions (including regulation 8(9) decision-making) to contractors subject to the Article 42A(6) restriction being properly read (limited to scheme-design powers). On fettering: the court held that the existence and use of Business Rules and of a process for escalation to a Council panel did not demonstrate an unlawful, across-the-board fetter or a wholesale failure to consider representations; the statutory safety-net of adjudication permits review of these matters and the adjudicators had not demonstrated that there was no consideration at all in the individual cases (the statutory definition of procedural impropriety requires a failure to observe a requirement, ie complete absence of consideration). On the costs information: although the NoRs' costs paragraph was incomplete and the adjudicators were entitled to criticise it, the court concluded that paragraph fell within the discretion under regulation 10(2) to include other information and did not, in the circumstances, amount to a statutory "procedural impropriety".

Outcome. The court allowed the claim in part, quashed the Joint Determination and Review Decision in relation to Cases 2–11 but refused to quash the decision in Case 1 (which had been decided on a distinct narrow ground). The court made no order as to costs between the Council and the adjudicators; no order was made as to costs in respect of the interested party.

The claim for judicial review is allowed in part. The court held that (i) "procedural impropriety" in regulation 8(3)(g) can cover failures arising after representations are made and therefore may be invoked on appeal under regulation 11(6); (ii) where regulation 8(10) applies a successful argument under regulation 8(3)(e) (no charge payable) may be available; but (iii) on the facts the adjudicators were wrong to find that there had been procedural impropriety by reason of unlawful delegation of the regulation 8(9) function, unlawful fettering by the Council’s Business Rules, or misleading costs information in the NoRs. As a result the Joint Determination and Review Decision are quashed in relation to Cases 2–11 but not Case 1. The claim is allowed in part for the reasons stated.