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London
Borough of Wandsworth v Al’s Bar and Restaurant
Case Number:
2020106430 Penalty Charge Notice: WA04516186
Review Decision dated 28 October
2002
This is an application by the
Borough of Wandsworth ('the Council') for review of the decision
of the Parking Adjudicator, Richard Crabb, on 2 July 2002 when he
allowed the appeal of Al's Bar & Restaurant Ltd ('the
Appellant') and directed the Council to cancel the Penalty Charge
Notice ('PCN') and the Notice to Owner ('NTO'). I heard the
application on 10 October 2002. Mr Pitt-Payne of Counsel
represented the Council and Mr Sutton the Appellant.
The
facts as to the issue of the PCN are not in dispute. The issue
between the parties is the validity of the PCN. The Appellant
says that the PCN is invalid and unenforceable because it does
not comply with the requirements as to content prescribed by
section 66 (3) of the Road Traffic Act 1991.
It provides as follows:
'(3) penalty
charge notice must state-
grounds
on which the parking attendant believes that a penalty charge is
payable with respect to the vehicle;
amount
of the penalty charge which is payable;
the
penalty charge must be paid before the end of the period of 28
days beginning with the date of the notice;
if
the penalty charge is paid before the end of the period of 14
days beginning with the date of the notice, the amount of the
penalty charge will be reduced by the specified proportion;
if
the penalty charge is not paid before the end of the 28 day
period, a notice to owner may be served by the London authority
on the person appearing to them to be the owner of the vehicle;
address
to which payment of the penalty charge must be sent.'
At
the hearing of the original appeal, which the Council did not
attend, Mr Crabb found, in essence, that the PCN did not comply
with the requirements of paragraphs (c), (d) and (e) and that
this rendered it invalid. In doing so, he adopted relevant parts
of the judgment of District Judge Wigfield in Sutton v London
Borough of Camden (In the Central London County Court Case No:
BT106545), a case heard earlier this year (the exact date is
unclear). This was a claim under the Torts (Interference with
Goods) Act 1977 relating to the clamping of a vehicle. It raised
similar issues about the validity of a PCN issued by Camden and
the District Judge found against Camden.
On 19 August 2002
the Council applied by fax for a review of Mr Crabb's decision,
under paragraph 11(1)(e) of the Road Traffic (Parking
Adjudicators) (London) Regulations 1993.
Regulation 11, as amended,
provides, so far as relevant, as follows.
'11.
(1) The adjudicator shall have power on the application of a
party, to review and revoke or vary any decision to dismiss or
allow an appeal or any decision as to costs on the grounds (in
each case) that -
(e) the interests of justice
require such a review.
-------------------------
(3) An
application under this regulation shall be made to the proper
officer within 14 days after the date on which the decision was
sent to the parties, and must state the grounds in full.
(4) The parties shall have the
opportunity to be heard on any application for review under this
regulation; and if, having reviewed the decision, the
adjudicator directs the decision to be set aside, he shall
substitute such decision as he thinks fit or order a
re-determination by either the same or a different adjudicator.
(5)....................'
The first issue I have to
consider is whether there should be a review of the decision.
Should there be a review?
The application was made
outside the 14 days prescribed by regulation 11(3). However,
regulation 14(1)(a) empowers me to extend that time
notwithstanding that it may have expired.
The Council contended that the
interests of justice required a review because:
1) the
decision was of general importance to the Council, and perhaps to
other Local Authorities, since it held that the Council's
current form of PCN did not comply with the legislation.
2) the
decision was reached following an oral hearing in which the
Council did not take part.
3) there
were important arguments and authorities that were not taken into
account by Mr Crabb.
4) there was
no prejudice to the Appellant as the Council would not in any
event enforce the particular PCN.
Mr Pitt-Payne told me that the
Council was initially not minded to apply for review but later
decided to do so, given the importance of the issues. He said
that the decision could affect a large number of PCNs and the
issues needed resolving quickly. Whilst the Council would need to
consider re-drafting its PCN whatever the outcome, this left open
the question of whether past PCNs were valid. If the issue were
left, there could be a collateral challenge in another forum, as
was the case in Sutton v Camden.
Mr Sutton argued that the
Council had no arguable case; that Mr Crabb's decision disclosed
no error in law. He also pointed out that the Council had had the
opportunity to attend the original hearing; Mr Crabb had
adjourned the hearing to make them aware of the Appellant's
detailed submissions. Mr Pitt-Payne told me that the adjournment
letter to the Council had apparently gone astray and it was only
when the Council received a telephone call from the Parking and
Traffic Appeals Service on the day of the hearing that they
became aware of the position. By then it was not possible to find
someone to attend.
The crucial point in my view is
that the case does raise issues of general importance concerning
the decriminalised enforcement of traffic controls. Clarification
of these issues would be of benefit to both Local Authorities and
the motoring public. It is therefore right that it should be
decided after full arguments from both parties, an advantage Mr
Crabb did not have.
I accordingly decided to proceed
with the review, notwithstanding that the application had been
made late.
I now turn to consider the
substantive issues. These are two. First, does the PCN comply
with section 66(3)? Secondly, if not, what is the effect of
non-compliance with section 66(3)? The second only arises, of
course, if the answer to the first is that it does not.
Does the PCN comply with
section 66(3)?
There is no dispute that
the PCN complies with paragraphs (a), (b) and (f). The Appellant
contends it does not comply with (c), (d) and (e).
Before considering each of
these in turn, there is a preliminary point I must deal with.
This is: must the PCN follow the wording of section 66 or may it
use different words provided that they mean the same? To put it
another way, must there be literal compliance or is substantial
compliance sufficient?
There is no doubt in my mind
that substantial compliance is sufficient. But this should not be
thought of as encouraging enthusiastic departure from the
statutory language. Disciplined drafting dictates that where a
statute requires a document to contain particular statements, the
starting point for drafting a compliant document ought always
(to) be that the statutory language should be carried across to
the document unless there are very good reasons for doing
otherwise. This is for the very obvious reason that if the
statutory language is adopted, the opportunities for challenging
the document for failure to comply with the statutory
requirements, as in this case, are eliminated.
Local Authorities, like other
organisations, are encouraged to couch their communications in
plain English, and of course this is to be applauded. But the
statutory requirements take precedence over this laudable aim,
and Local Authorities must be aware that the language they use,
however plain, must bear the same meaning in substance as that
prescribed by the statute.
I now turn to consider
compliance with each of the paragraphs in issue.
Section 66(3)(c): that
the penalty charge must be paid before the end of the period of
28 days beginning with the date of the notice
The PCN says this:
'You
are therefore required to pay the sum of £80 within 28
days.'
This does not follow the
wording of the Act and therefore does not literally comply. Does
it comply in substance? To decide, I must examine the elements of
paragraph (c).
First, 'that the penalty charge
must be paid'. The reference to 'the sum of £80' in the
above sentence from the PCN is in fact the only place in which
the full amount of the penalty charge is stated. It is referred
to as a 'sum' rather than being specifically described as a
penalty charge. In fact, rather than being simply the statement
required by paragraph (c), the sentence attempts to cover both
(b) and (c). Whilst compliance with (b) was not disputed by the
Appellant, it seems to me that merely to describe the £80
as 'the sum' is at best unsatisfactory and at worst
non-compliance.
The sentence that follows does
refer to 'The charge' (not penalty charge) being reduced, but
describing the full sum as a penalty charge when it is first
referred to would avoid any doubts. Indeed, curiously the
expression penalty charge appears nowhere in the PCN except as
part of the term 'Penalty Charge Notice'. It appears that the
draftsman of the PCN may not have appreciated the distinction
between the penalty charge, which is the penalty payable, and the
Penalty Charge Notice, which gives notice of the penalty charge
payable. I say this because on the back the Notice (it) says 'If
payment of this Penalty Charge Notice is received....'
Reverting to paragraph (c), Mr
Pitt-Payne contended that 'You are required to pay' means in
substance the same as 'This sum must be paid'. I accept that 'are
required' means in substance the same as 'must'. Having said
that, I cannot see that it is an improvement. What could be
plainer than the simple word 'must'?
But there is another point on
this element. Under section 66(1) the parking attendant effects
service of the Penalty Charge Notice by either fixing it to the
vehicle or giving it to 'the person appearing to him to be in
charge of the vehicle'. Under section 66(2) the person legally
liable for payment of a penalty charge is the owner. It may or
may not be that the person in charge of the vehicle is the owner.
Therefore, the person who receives the Penalty Charge Notice may
or may not be the person legally liable to pay the penalty
charge. It is no doubt for this reason that the draftsman chose
the impersonal 'that the penalty charge must be paid'. For the
notice to say 'You are required to pay' will be an inaccurate
statement of the legal position in a great many cases.
In those circumstances, it cannot
to my mind be said that the formulation in the PCN constitutes
substantial compliance.
Turning to the next element,
the prescribed period for payment is 'before the end of the
period of 28 days beginning with the date of the notice'. The PCN
says 'within 28 days'.
The general rule is that where
a period is fixed for the taking of some step, the day of the act
or event from which the period runs is excluded in calculating
the period. Mr Pitt-Payne conceded that 'within 28 days' fell to
be construed in accordance with this rule as excluding the date
on which the PCN was issued. The wording does not literally
comply with paragraph (c), but does it substantially comply?
Mr Pitt-Payne referred me to
Trow v Ind Coope (West Midlands) Ltd [1967] 2 All E.R. 900,
which he conceded was against him. This concerned the
interpretation of the Rules of the Supreme Court Order 6 rule
8(1), which provided that a writ was valid 'for twelve months
beginning with the date of its issue'. The Court of Appeal held
that 'beginning with the date' included the day on which the writ
was issued and ousted the general rule.
Mr Pitt-Payne urged me to
construe this case narrowly; to treat it as authority for the
meaning of 'beginning with' only in the context with which the
Court was concerned and as not applying to a penal or quasi-penal
administrative penalty. This is a most unappealing proposition.
If the term's meaning is dependent on context, it would mean that
in every context where the term appeared there would be likely to
be uncertainty as to its meaning. I would in any event have
decisively rejected it, but in any case it seems to me to be
inconsistent with the decision in Trow.
Furthermore, another
authority, Hare v Gocher [1962] 2 Q.B. 641, is to the same
effect as Trow: In Hare, where the words in
question were 'beginning with the commencement of this Act' and
'beginning with the date on which it is passed', Winn J concluded
that the phrase 'beginning with' was especially used to avoid
equivocation and to exclude the ordinary rule.
In Trow, Harman LJ said
'I see no escape from the conclusion that where the word "with"
is used, the first day is included'; and Salmon LJ said that 'Any
period of time to be calculated as commencing or beginning with a
certain day must include that day.' I emphasise: 'Any period'.
This makes clear that this is a matter not of context but of the
ordinary meaning of the language.
Mr Pitt-Payne argued that if
the draftsman had intended the first day to be included, he could
have made that clear by including words such as 'including the
day of issue of the notice'. The answer to that is that given
that the meaning of the phrase chosen by the draftsman is well
established, any such embellishment would have been verbiage.
Mr Pitt-Payne also argued that
if the wording of the PCN differed from the language of the
statute, the effect was to give an extra day for payment to be
made. If there was an error, it was in favour of the person
liable to pay; so nobody was prejudiced by the error. This
argument might well be relevant to the second substantive
question - the effect of non-compliance - but
it does not support the argument that the PCN is compliant. The
Local Authority has no power to extend the statutory period as a
matter of law. The fact that it may as a matter of administrative
practice allow longer than the prescribed periods (an issue I
will return to) is a different point and cannot justify a
misstatement of the legal position, which is the purpose of the
requirements of section 66(3).
The PCN therefore fails the
compliance test in this regard also.
There is a further point on
this second element. In order to calculate the period, it is
necessary to know 'the date of the notice'. Implicitly,
therefore, paragraph (c) requires the notice to bear its date.
The date '20/11/01' appears twice
on the PCN. It appears about halfway down where it is stated that
the vehicle 'was seen in Lockington Road SW8 at 09:24 on
20/11/01'. That is in fact part of the 'grounds on which the
parking attendant believes that a penalty charge is payable with
respect to the vehicle' required by paragraph (a). It appears
again on the part of the document described as a 'Payment Slip'.
At the top of the document the 'Notice No.' appears. This also
appears on the Payment Slip, adjacent to 'Date: 20/11/01'. In
contrast to the Payment Slip, the date does not appear adjacent
to the notice number at the top.
Mr Pitt-Payne conceded that it
might have been clearer if the date had appeared at the top with
the notice number. He contended, however, that there was no
reasonable ground for uncertainty and that no reasonable person
looking at the PCN could be in any doubt about its date.
I asked Mr Pitt-Payne what
would happen if I, having received a PCN, tore off the Payment
Slip and sent it with my remittance for the penalty charge. If I
later wanted to know the date of the notice for some reason - for
example, because an issue arose between me and the Local
Authority about whether I had paid the reduced penalty within the
time allowed - where would I then find the date of the
notice on what I was left with? Mr Pitt-Payne suggested that I
might then have to ask the Local Authority for a copy of the
Payment Slip.
If that is so, it follows that the
date does not appear on what I am left with - the PCN
after detaching the Payment Slip. That seems to me to be the
position. It is not sufficient for a date to appear in the
paragraph (a) statement of grounds. The date appears there for
the purpose of describing the grounds, not as stating the date of
the notice.
As to the Payment Slip, it is in my
view not part of the PCN at all; it is a separate document that
is, for convenience, attached to the PCN. I note that on the
Wandsworth NTO, both the number and date appear at the top of the
notice and the attached Payment Slip, in contrast to the PCN.
The PCN as drafted would in my
view still not be adequate even if the date of the alleged
contravention and the date of the notice were always the same.
But in any event this is not the case. A PCN may be served by
post where enforcement is carried out remotely by camera and
where the parking attendant has been prevented by someone from
serving a PCN on the street. In such cases, the date of the
notice will be different from the date of the alleged
contravention.
Again, therefore, the PCN fails
the compliance test.
Section 66(3)(d):if the
penalty charge is paid before the end of the period of 14 days
beginning with the date of the notice, the amount of the penalty
charge will be reduced by the specified proportion
The PCN says:
'The charge will be reduced to
£40 if payment is received within 14 days'; and
'If
payment of the Penalty Charge Notice is received within 14 days
of the date of issue (as shown overleaf) the reduced charge will
be accepted as settlement.'
I note, in passing that in these
sentences the impersonal form is used. But similar issues arise
concerning the phrase 'beginning with' and the absence of the
date of the notice, and my conclusions are the same.
A further point arose. The
second sentence uses the expression 'date of issue' rather
than 'date of the notice'. Mr Pitt-Payne submitted there was no
difference. I would say that if the date had appeared on the
notice and it had there been described as the date of issue, I
would have agreed this amounted to substantial compliance.
However, I can see no merit in using 'date of issue' rather than
'date of the notice', the phrase in the Act.
If the notice had described the
date as 'Date of Notice' or simply 'Date', as on the payment
slip, then I suppose there might be scope for confusion if the
paragraph (c) and (d) statements used the expression 'date of
issue'. There could really be no confusion if the statements said
'date of the notice' even if the date itself were merely
described as 'Date'.
There is perhaps an even better
way of complying with the requirement to state on the notice the
time limits that apply. Many PCNs are nowadays issued by using
handheld computers. I would have thought it ought to be a
straightforward matter for the handhelds to be programmed to
print the relevant dates on the notice automatically. This would
avoid the recipient having to work them out and any possibility
of misunderstanding. This is an example of where it may be
desirable to effect compliance otherwise than by merely following
the wording of the statute.
Section
66(3)(e):if the penalty charge is not paid before the end of the
28 day period, a notice to owner may be served by the London
authority on the person appearing to them to be the owner of the
vehicle
The PCN says:
'If no payment is received
within 28 days of the date of issue, a Notice to Owner may be
sent to the registered keeper of the vehicle requesting payment.'
Again, the relevant period is
incorrectly stated.
The second point the Appellant
takes on this paragraph is that the PCN says that the NTO may be
sent to 'the registered keeper' whereas the Act refers to 'the
person appearing to [the London authority] to be the owner of the
vehicle'.
Mr Pitt-Payne submitted that there
is no difference in substance between the two. He said that the
point made in the PCN is that the way in which the Council will
determine the identity of the apparent owner is by finding out
who is the registered keeper.
I do not accept these
submissions. It is not the case that there is no difference in
substance between 'the registered keeper' and 'the person
appearing to the [London authority] to be the owner'. As I have
said above, the Act places liability for penalty charges on the
owner. Section 82 provides as follows:
'S.
82(2) (For) the purposes of this Part of this Act, the owner of a
vehicle shall be taken to be the person by whom the vehicle is
kept.
((3) In) determining, for the purposes of
this Part of this Act, who was the owner of a vehicle at any
time, it shall be presumed that the owner was the person in
whose name the vehicle was at that time registered under the
[1971 c.Vehicles (Excise) Act 1971.'
The scheme of the Act does not
therefore place liability on the registered keeper. It places
liability on the owner; the owner is to be taken to be the
keeper; and there is then merely a presumption that the owner was
the registered keeper.
That presumption is rebuttable;
under paragraph 2(4) of Schedule 6 to the Act, one of the grounds
on which the recipient of a NTO may make representations to
contest liability is:
'(a) (that) the
recipient-
(never)
was the owner of the vehicle in question;
ceased
to be its owner before the date on which the alleged
contravention occurred; or
its
owner after that date'
Paragraph 2 (5) and (6) go on
to provide, in substance, that where (a)(ii) or (iii) are relied
on, the person making the representations must supply the name
and address of the person to whom the vehicle was disposed of or
from whom it was acquired, if they have that information.
Paragraph 3(2) empowers the Local Authority to serve a further
NTO on that person.
The power to serve a NTO is
prescribed in paragraph 1 of Schedule 6, which empowers the Local
Authority to serve such a notice on 'the person who appears to
them to have been the owner of the vehicle when the alleged
contravention occurred'; not, it is important to note, on the
registered keeper. The power is clearly expressed in these terms
because it may or may not be that the registered keeper was the
owner at the relevant time; and it is possible that at the point
of deciding on whom to serve the notice the Local Authority is in
possession of information that the registered keeper was not the
owner.
Let me give one example. It may
occur that more than one PCN is issued to a vehicle over a period
of time. Say two are issued to a vehicle. The Local Authority
eventually serves a NTO on the registered keeper in respect of
the first. It receives representations from the registered keeper
on the basis of which it accepts that he had disposed of the
vehicle before the date of the contravention and therefore was
not the owner at that time. The Local Authority then comes to
consider service of the NTO in respect of the second, later, PCN.
It could hardly be that at that point the registered keeper could
be 'the person who appears to them to have been the owner of the
vehicle when the alleged contravention occurred.'
The draftsman constructed a
carefully thought out scheme of liability and chose his words
with equal care to reflect it. He chose the more elaborate
expression 'the person appearing to the [London authority] to be
the owner' rather than 'registered keeper' for the very good
reason that to empower the Local Authority to serve the NTO on
the registered keeper would not reflect the more complex scheme
of liability.
Mr Pitt-Payne submitted that
the statement in the PCN was compliant since it describes what
generally happens; and that the word 'may' reflected the fact
that the notice might be sent to someone else. I do not agree.
The requirement in paragraph (e) was clearly deliberately
formulated by the draftsman so as to inform the recipient of the
Local Authority's power under Paragraph 1 of Schedule 6. That is
the requirement; to instead inform the recipient of what
generally happens does not fulfil the purpose of the requirement.
Nor does 'may' have the meaning
advocated by Mr Pitt-Payne. It is taken from paragraph (e) and
the use of that word reflects the fact that the Local Authority
has a power, not a duty, to serve a NTO. It has nothing to do
with on whom the notice will be served.
So I conclude that in relation
to both points taken by the Appellant the PCN is not compliant.
But there seem to me to be two
other difficulties with it. First, the PCN says 'If no payment is
received....'; the requirement in the Act is to state that 'if
the penalty charge is not paid'.
The wording in the PCN could be
seen as unclear: does the whole of the penalty charge have to be
paid or is a part payment sufficient? Following the plain and
carefully chosen words in the Act would avoid any element of
ambiguity.
Secondly, the requirement of
the Act is to state that a NTO may be served 'by the London
authority'. The Act requires the PCN to state by whom the notice
may be served. It does not do so.
So it is clear that the PCN
fails to comply with the requirements of Section 66(3)(c), (d)
and (e) in a number of respects.
Accordingly I must now consider the
second substantive question:
What is the effect of
non-compliance with section 66(3)?
The requirements of
section 66(3) are without doubt mandatory, not directory.
However, it is clear from the
authorities that this does not mean that non-compliance
automatically renders the PCN a nullity. In London &
Clydesdale Estates Ltd v Aberdeen DC [1980] 1 WLR 182, which
concerned the absence of a required statement of rights of appeal
from a certificate, Lord Hailsham said that whilst the failure to
include the information was fatal to the certificate, it was not
a nullity; it 'was effective until it was struck down by a
competent authority'.
And Lord Fraser of Tullybelton
said:
'I have no doubt that the
effect of the omission in the case was to make the certificate
invalid in the sense that it cannot stand if challenged by the
appellants. It is not a complete nullity.'
So this PCN, although
defective, remains effective unless I find it to be a nullity.
The question is whether I should do so.
This is a matter of discretion.
Mr Pitt-Payne referred me to R v Immigration Appeal Tribunal
ex p Jeyeanthan (1999) 11 Admin LR 924 CA for the principles
he said I should apply.
In that case Lord Woolf MR cited
Lord Hailsham in the London & Clydesdale case, where
he said:
'When Parliament lays down a
statutory requirement for the exercise of legal authority it
expects its authority to be obeyed down to the minutest detail.
But what the courts have to decide in a particular case is the
legal consequence of non-compliance on the rights of the chain
of events. It may be that what the courts are faced with is not
so much a stark choice of alternatives but a spectrum of
possibilities in which one compartment or description fades
gradually into another. At one end of this spectrum there may be
there may be cases in which a fundamental obligation may have
been so outrageously and flagrantly ignored or defied that the
subject may safely ignore what has been done and treat it as
having no legal consequence upon himself ........ At the other
end of the spectrum the defect.......may be so nugatory or
trivial that, if the subject is so misguided as to rely on the
faults, the courts will decline to listen to his complaint. But
in a very great number of cases, it may be a majority of them,
it may be necessary for a subject, in order to safeguard
himself, to go to the court for declaration of his rights, the
grant of which may well be discretionary....... The jurisdiction
is inherently discretionary and the court is frequently in the
presence of differences of degree which merge almost
imperceptibly into differences of kind'.
The crucial passages
from what Lord Woolf himself said are as follows.
'Because of what can be the very
undesirable consequences of a procedural requirement which is
made so fundamental that any departure from the requirement
makes everything that happens thereafter irreversibly a nullity
it is to be hoped that provisions intended to have this effect
will be few and far between. In the majority of cases .......
the tribunal ........ has the task of determining what are the
consequences of failing to comply........in the context of all
the facts and circumstances of the case in which the issue
arises. In such a situation that tribunal's task will be to seek
to do what is just in all the circumstances.
.............
It
must be remembered that procedural requirements are designed to
further the interests of justice and any consequence which would
achieve a result contrary to those interests should be treated
with considerable reservation.
..............
I suggest that the right approach
is to regard the question of whether a requirement is directory
or mandatory as only at most a first step. In the majority of
cases there are other questions which have to be asked which are
more likely to be of greater assistance than the application of
the mandatory/directory test. The questions which are likely to
arise are as follows:
(a) Is the
statutory requirement fulfilled if there has been substantial
compliance with the requirement and, if so, has there been
substantial compliance in the case in issue even though there
has not been strict compliance? (The substantial compliance
question.)
(b) Is the
non-compliance capable of being waived, and if so has it, or can
it and should it be waived in this particular case? (the
discretionary question.) I treat the grant of an extension of
time for compliance as a waiver.
(c) If it is
not capable of being waived or is not waived then what is the
consequence of the non-compliance? (the consequence question.)'
I will apply this approach to the
question of the effect of non-compliance with section 66(3).
Mr Pitt-Payne conceded that the
discretionary question did not arise in this case. I must
accordingly consider the substantial compliance and consequence
questions.
The substantial
compliance question
I have already found
that the PCN did not comply with the requirements of section
66(3). It did however seem to me that there might be a wider
aspect to this question in relation in particular to the time
limits of 28 and 14 days: whether the Council was able to say
that there was compliance with the enforcement scheme prescribed
by the Act as a whole, even though looked at in isolation the PCN
did not accord with the requirements of section 66(3). This is
where the contention that there was no prejudice because the PCN
allowed an extra day in relation to the time limits is relevant.
If following service of the NTO the
Council then proceeded with further enforcement on the basis of
those longer time limits, would that satisfy the substantial
compliance test?
In this connection, Mr
Pitt-Payne told me that in practice the Council allowed 35 days
before serving the NTO. This was at odds with what happened in
this case: the PCN was issued on 20 November 2001, the NTO sent
on 19 December 2001. It seems - although there was an element of
speculation about this - that the latter may have been brought
forward because of the approach of the Christmas holiday.
Whatever the reason, it is clear that the 35 days is not rigidly
adhered to.
And I heard evidence from Ms Coral
Kirkwood, a Senior Parking Officer from the Council, that she
understood the 28-day statutory period as including the day of
the contravention, so that in calculating when the Council was
legally entitled to serve the NTO she would include it - at
odds with the PCN.
Mr Pitt-Payne put it to me that if
a PCN were served immediately on expiry of the statutory time
limit the recipient would be entitled to take the point that it
had been served too soon given the time limit stated on the PCN.
But this is approaching the issue back to front: it is the
statement on the PCN that is non-compliant; the service of the
NTO would comply with the statutory power.
As to the 14 days for payment
of the reduced penalty, Mr Pitt-Payne told me that in practice
the Council allows 17 days. However, my view of this was that it
was no more than an administrative convenience to avoid disputes
about whether payment had been made within time.
Mr Pitt-Payne was unable to provide
a definitive answer to the question as to the period up to the
end of which the Council regarded itself as obliged in law to
accept the reduced penalty. The evidence did not satisfy me that
there was no possibility of the Council declining to accept
payments received outside the statutory period but within the
longer period given on the PCN, perhaps in an individual case or
because of a general change of practice.
If there were to be any
question of my concluding that there was substantial compliance
with the general scheme of time limits in the wider sense, I
would have had to have had clear evidence that the Council
applied the longer time limits described on the PCN on the basis
of an understanding that those were the statutory limits;
otherwise there would be the danger of the rights of the public
being affected by mere changes of practice. I did not have such
evidence; indeed, Ms Kirkwood's evidence was to the contrary. In
any event, even if there were substantial compliance in this
wider sense with the time limits, there could be no question of
there being such compliance with other aspects. In those
circumstances, it is not necessary for me to come to a firm
conclusion on this point.
The consequence question
I should first say that I do not
regard this case as falling at either of the extremes of Lord
Hailsham's spectrum of possibilities but within the majority
falling in between. What I have to do is exercise the discretion
whether to find the PCN in issue in this case a nullity.
Mr Pitt-Payne contended that I
should not do so because the Appellant had not alleged any actual
confusion or prejudice, even if a PCN in this form might be found
a nullity in another case. That is certainly one consideration I
must take into account, but it is in my view by no means the only
one.
I bear in mind that the Council
did not apply for review because the issue of liability for this
individual PCN was itself of great importance. It did so because,
it said, of the important general issues and implications, which
could affect other Local Authorities as well as the Council. It
was for that reason I considered it appropriate to conduct a
review and granted the application. It would therefore be wrong
to confine my consideration of the consequence question to the
PCN the subject of this case; I must consider the question in the
widest context. This means considering it in the overall context
of parking control in London.
In considering this question I
take account of this passage from Lord Hailsham's judgment in
London & Clydesdale:
'I do not think
we are entitled to play fast and loose with statutory
requirements designed to inform the subject as to his legal
rights against an authority possessed of compulsory
powers...........I do not think that prescriptions for the
benefit of the subject are to be so disregarded.'
And in the highly respected
textbook Wade & Forsyth: Administrative Law (8th
Edn.) page 230 it is stated as follows:
'In notices affecting private
rights, particularly where the effect is penal, scrupulous
observance of statutory conditions is normally required....An
enforcement notice is void if it fails to state, as it should,
the time allowed for compliance.' (citing Burgess v Jarvis
[1952] 2 Q.B. 41).
Mr Pitt-Payne accepted that the
fact that the Council's powers in this case are penal was a
factor I should take into account. The requirements of section
66(3) are plainly designed to inform the subject as to his legal
rights in the context of the penal scheme. These considerations
weigh in favour of finding the PCN a nullity, but they are not
conclusive on their own.
I also consider the nature and
extent of parking control as an activity. It is a necessary one
of considerable importance that affects the daily lives of
millions of motorists. PCNs are issued in their thousands every
day; over 4 million every year. Only about 1 per cent gets as far
as an appeal before a Parking Adjudicator. In relation to such a
routine, everyday, prolific activity it is highly undesirable for
non-compliant PCNs to be served in large numbers.
My decision should in my view
provide every encouragement to Local Authorities to ensure that
the PCNs they serve are compliant with the statutory requirements
as to their content.
This is not the first occasion this
issue has come before a Parking Adjudicator. In the case of
Moulder v Sutton LBC (PATAS Case No. 1940113243 24 May 1995)
an Adjudicator found the PCN in that case to be a nullity
because it omitted the statement required by section 66(3)(e).
Yet it seems that invalid PCNs are still being issued, as both
this case and Sutton v London Borough of Camden show. The
drafting of a compliant PCN is a simple drafting task and it is
difficult to understand why these difficulties have arisen and
continue to do so.
These sentiments apply to every
stage of the enforcement process, not just the issue of a valid
PCN. The Parking Adjudicators have had cause in their annual
report on more than one occasion to comment on procedural
irregularities that have come to their attention in appeals.
The motoring public deserves
nothing less than that the public authorities exercising penal
powers understand the importance of their complying with the
conditions attached to their powers and are scrupulous about
having in place administrative processes that do so. It is
imperative that the public can have confidence in the fairness
and propriety of the enforcement of parking controls.
It is also relevant that the
penalties for parking contraventions are relatively low. It is
very undesirable in those circumstances for the imposition of
those penalties to be attended by uncertainties about its
legality for procedural reasons. What is required is simplicity,
clarity and certainty. That aim is not assisted by a less than
rigorous approach to procedures by Local Authorities.
I also take into account the
fact that the PCN in this case was non-compliant in a
considerable number of respects. This is not a case of a single,
minor error. I am afraid that the Council has played rather fast
and loose with the carefully drafted requirements of the Act, no
doubt inadvertently, but it is none the less serious for that.
All these factors taken
together in my view point strongly towards the interests of
parking control being best served by my finding the PCN to be a
nullity irrespective of whether the non-compliance caused
prejudice in this case.
But what factors are there
pointing the other way? Apart from the non-prejudice point in
this particular case, Mr Pitt-Payne put forward two arguments.
First, that there was no danger of prejudice or confusion on any
likely facts. That is a matter of speculation. In any event, it
is not acceptable for the Council to say, in effect, that it may
not have complied with the statutory requirements but it really
does not matter. The statutory requirements are as they are for
very good reasons, they are mandatory and the Council should
comply with them.
In any event, it is in my view
incorrect to suggest that there are no foreseeable circumstances
in which the errors could cause prejudice. It is perfectly
possible to envisage such cases: I have mentioned for one the
possibility of confusion over the period applicable to the right
to pay the reduced penalty.
Secondly, he argued that if I find
this PCN a nullity without finding prejudice, that would put in
jeopardy many other PCNs. This may be so, but I do not consider
that it tips the scales in favour of not finding the PCN a
nullity. The effect would be historical and time limited.
Historical because, clearly it would affect only past invalid
PCNs - provided that the Council in future issues
valid ones. Time limited because, as I have said, it would not
mean all past invalid PCNs becoming nullities. It would be
necessary for a challenge to the validity of each PCN to be
brought before a competent judicial forum, and there are time
limits for doing so. The issue would therefore only affect PCNs
issued relatively recently.
Nor would finding this PCN a
nullity prejudicially affect the Council's ability to carry out
the enforcement of future valid PCNs. The fact that some
motorists may now escape liability for past contraventions does
not seem to me to outweigh the factors on the other side of the
scales. Those incidents are long over and done with; they are not
continuing situations. The fact that the PCN issued may now turn
out to be invalid can have had no effect on the conduct of the
motorist at the time.
Mr Pitt-Payne quite properly did
not suggest that any loss of revenue to the Council was a
relevant factor since, as is well established, the purpose of
parking enforcement is traffic control, not revenue raising: see
R (City of Westminster) v The Parking Adjudicator QBD Judgment
22 May 2002.
The future of parking control, on
the other hand, is a continuing future consideration and is the
one to which I ought to give precedence. In my view it is clear
that the interests of justice, and the interests of both Local
Authorities and the public, are best served by Local Authorities
scrupulously observing the statutory requirements attached to
their powers of enforcement. Their not doing so can only result
in parking control being brought into disrepute.
I accordingly find that this
PCN is a nullity and uphold the decision of Parking Adjudicator
Richard Crabb to allow this appeal.
I should record that Mr Sutton
made an application for costs. He did so somewhat tentatively,
correctly so. I may only award costs against the Council if I
find that it acted frivolously, vexatiously, or wholly
unreasonably. There is no question of its having done so.
Original
Decision dated 2 July 2002, subsequently reviewed under
Regulation 11 of The Road Traffic (Parking Adjudicators) (London)
Regulations 1993
The Appellant advanced a number of
grounds of appeal and has been successful on ground No 5 as set
out in a document with the heading "Grounds relating to the
alleged contravention did not occur". This is that the
Penalty Charge Notice was not legally issued nor was
it valid.
When Mr Sutton first appeared
before me on the 7th
May 2002 the local authority was not present or represented. Mr
Sutton intimated that he had a number of legal authorities to
which he would be referring. In these circumstances I thought it
best that I should have a hard copy of these and that the local
authority should be supplied with the same.
Accordingly, this was done and the
case was adjourned until today.
I had asked, in the meanwhile, if
the local authority would like to comment on the documentation
supplied to it and emanating from Mr Sutton. By mid
day today no comment had been forthcoming. A fax message was,
however, sent today by the local authority , to say that the
Council had no further comments to make and its position remained
as set out in the Appeals submission.
Amongst the many documents
submitted to me by Mr Sutton was a copy of the judgement of his
case against the London Borough of Camden in the Central London
County Court. District Judge Wigfield handed down the judgement
and pages 19 to 28 are the relevant pages. The local authority
has a copy of this judgement.
The points to which the Judge
refers in those pages are exactly the same as Mr Sutton raised in
this appeal and are all concerned with the fact that a Penalty
Charge Notice MUST state what is set out in Sec 66(3)(a)-(f)
inclusive of the Road Traffic Act 1991.
In particular, in this case, the
PCN does not state that the penalty must be paid within 28
day period. Word MUST is mandatory. PCN also does not state
that this period should begin with the date of the notice; also,
no date of notice stated as such. PCN does not state that penalty
must be paid within 14 period to begin with the date of the
notice-date of issue and date of notice may not be the same. PCN
also fails to refer to "before the end of the 28 day period"
see sec 66(3)(e) RTA 1991 or to refer to the NTO being served by
the "London authority on the person appearing to them to be
the owner of the vehicle."
All these matters are traversed in
some detail by Judge Wigfield and I incorporate pages 19-28 of
his judgement into my adjudication as they are entirely to the
point. I would also draw attention to the Judge's reference to
the case of Moulder v Sutton London Borough Council at page
26 as it also deals with similar issues as arise in this case.
Although it may seem that this case
is unmeritorious, as it is based on technical argument, the law
is clear.
It follows that I allow this appeal.
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