moulder v sutton

Title: moulder2.01

Subject:

Author: JackieH

Contents:

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THE PARKING COMMITTEE FOR LONDON

PARKING APPEALS SERVICE

CASE REFERENCE: 1940113243

PCN: SU63029551

DECISION

The Statutory Background

The Road Traffic Act 1991 ("the Act") provides a scheme which decriminalises the vast majority of

contraventions of the regulation of parking in London. It takes the enforcement of such parking

regulations out of the hands of the police, and puts it into the hands of the local authorities, that is the

London Boroughs. Parking contraventions - such as parking on a single yellow line during restricted

hours, or parking without payment of the initial charge in a pay and display bay - are not criminal

offences under the scheme, but they can result in a penalty being incurred. Such penalties are payable

to the authority responsible for enforcement of parking regulations under the scheme. The authorities

employ parking attendants to assist them in enforcement.

Under Section 66 of the Act, where a parking attendant has reason to believe that a contravention of

parking regulations has occurred such that a penalty charge is payable, he may issue a penalty charge

notice (commonly referred to as a "parking ticket": I will refer to it as a "PCN"), which he may fix to

the vehicle or give to the person appearing to him to be in charge of the vehicle. It is clear from the

wording of that section - and, in any event, from common sense - that the PCN is directed at the

person driving or apparently in charge of the vehicle, or (if there is no one with the vehicle at the time)

the driver or person in charge of the vehicle when that person returns to the vehicle. This is the

person who is intended to be - and is likely to be - the recipient. I will refer to this person as "the

driver". The driver will often (although not necessarily) be the owner, keeper or hirer of the vehicle

(who I will refer to as "the owner").

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Although a PCN is aimed at the driver, if he does not pay the penalty referred to in the PCN then he

(as the driver) cannot be pursued for it, at all. In the event of non-payment for 28 days, the authority

may serve a notice on the person who appears to them to have been the owner of the vehicle when

the alleged contravention occurred, i.e. a notice to owner (which I will refer to as an "NTO"). This is

provided for by Schedule 6, paragraph 1(1) of the Act, which reads:

"Where:

(a) a penalty charge notice has been issued with respect to a

vehicle under Section 66 of this Act; and

(b) the period of 28 days for payment of the penalty charge has

expired without that charge being paid,

the London authority concerned may serve a notice ("a notice to owner") on the person who

appears to them to have been the owner of the vehicle when the alleged contravention

occurred".

The owner may lodge representations against the NTO and, if these are not accepted by the authority,

then the owner may appeal to a parking adjudicator against the authority's decision. Subject to that

appeal, if the penalty charge is not satisfied by the owner, then the authority may serve on that person

a statement to the effect that the penalty charge in question is increased by 50%. If this is not

satisfied, then it can be enforced against the owner as if it were payable by him under a County Court

order. If the penalty is not paid by this stage, all of the enforcement procedures of the County Court

lie in the hands of the authority, e.g. a warrant of execution enforced by bailiffs. There are no criminal

sanctions for the non-payment of a penalty.

Therefore, although the intended recipient of a PCN is the driver, all steps towards the enforcement of

the penalty up to and including enforcement through the County Court, are taken, not against the

driver, but against the owner.

The Act provides for a number of matters which must (the Act says) be included in a PCN, and in an

NTO, respectively. By Section 66(3):

"A penalty charge notice must state:

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(a) the grounds on which the parking attendant believes that a penalty charge is payable

with respect to the vehicle;

(b) the amount of the penalty charge which is payable;

with the date of the notice;

(d) that 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;

(e) that, 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;

(f) the address to which payment of the penalty charge must be sent."

By Schedule 6, paragraph 1(2):

"A notice to owner must state:

(a) the amount of the penalty charge payable;

(b) the grounds on which th e parking attendant who issued the penalty charge notice

believed that a penalty charge was payable with respect of the vehicle;

with the date on which the notice to owner is served;

(d) that failure to pay the penalty charge may lead to an increased charge being payable;

(e) the amount of that increased charge;

(f) that the person on whom the notice is served... may be entitled to make

representations...; and

(g) the effect of paragraph 5 below."

Paragraph 5 concerns an appeal to a parking adjudicator against the authority's decision.

Whilst considering the statutory background, for the sake of completion I should say that I am

informed by the London Borough of Sutton that the relevant part of Mulgrave Road, Sutton, referred to

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below, comprises a pay-and-display place in which parking during certain restricted hours is subject to

a charge and a further, penalty charge if payment is not made of that initial charge or if the vehicle

remains in that place for longer than the period for which the initial payment was made, by virtue of

the Sutton (Controlled Parking) (On-Street Places) (No.1) and (No.2) Orders 1994. The penalty

charge payable is £40, or £20 if paid within 14 days.

The Facts

At 11.31 am on 8 March 1994 (i.e. during restricted hours), Sutton Parking Attendant No.16 saw

vehicle registration number VLE 170X parked in Mulgrave Road, Sutton, in a pay-and-display bay.

The vehicle was not displaying a pay-and-display ticket at all. Having reasonable cause to believe that

the vehicle had been parked without payment of the initial charge (in contravention of the parking

regulations in the designation order), he issued a PCN, No.SU63029551. The PCN, as required by

Section 66(3), stated:

(i) the grounds on which the parking attendant believed that a penalty charge was

payable, namely that the car was parked without payment of the initial charge:

(ii) the amount of the penalty charge payable, namely £40:

(iii) that the penalty charge was payable within 28 days:

(iv) that, as a concession for prompt payment, if the penalty charge was paid within 14

days it would be reduced to £20: and

(v) the address to which payment should be made, including various modes of payment

(i.e. in person, by post or by credit card).

The PCN also stated:

"Any enquiry regarding this Notice must be made within 7 days quoting the Penalty

Charge Number".

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The PCN does not say what will happen if an enquiry is not made within 7 days, but is made later.

The Act does not provide a time limit in which enquiries - or representations - regarding a PCN must

be made. As indicated above, it merely provides that, in the event of non-payment of a PCN for 28

days, the authority may serve an NTO.

Finally, the PCN issued by Sutton Parking Attendant No. 16 in respect of vehicle registration number

VLE 170X, also stated:

"Under the Road Traffic Act 1991 it is an offence to fail to pay this Penalty Charge".

However, as indicated above, it is not a (criminal) offence to fail to pay a PCN. Furthermore, although

the PCN is directed at the driver (and, consequently, this provision in the PCN suggests that it is the

driver who commits an offence if there is a failure to pay the penalty charge), as described above, all

steps towards the enforcement of the penalty are taken, not against the driver qua driver, but against

the owner.

The authority before me accepted that the PCN did not state that, if the penalty charge was not paid

within 28 days, an NTO may be served by the authority by the person appearing to them to be the

owner of the vehicle, as Section 66(3)(e) says it must. The authority (the London Borough of Sutton)

said that none of the PCNs issued by them before November 1994 contained such a statement

(although this omission was rectified in respect of all PCNs issued from that month). Although there

was no evidence from them on the point, I was told by Miss MacGregor on their behalf that this

omission was not the result of a decision by the authority that that provision was unnecessary, but

rather it was a genuine mistake. The point had apparently not entirely escaped the authority, because I

was told that, if anyone raised a query concerning a PCN prior to November 1994, then they would

have received a standard form letter containing the following paragraph:

"Please note that if payment is not received a Notice to Owner will be sent to the

registered keeper of the vehicle. If this is not you, you should inform the registered

keeper of the fact that a Penalty Charge Notice has been issued as the owner is liable

for payment."

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I have no evidence before me as to why no provision complying with Section 66(3)(e) was included in

Sutton's PCNs until November 1994. However, for the purposes of this issue, I accept what Miss

MacGregor tells me, that it was simply a mistake.

Following the issue of PCN No. SU63029551, the authority received no payment. As a result, on 25

October 1994, they issued an NTO to a Frederick Steven Moulder who, according to the DVLA's

records, was the registered keeper on 3 August 1994. Mr Moulder responded to that NTO. The

authority considered his representations, but wrote to him on 28 October 1994 rejecting his

representations and indicating that he may appeal to a parking adjudicator in respect of their rejection.

This he duly did, on 24 November 1994.

Mr Moulder did not himself raise any ground of appeal based upon the omission from the PCN of a

statement complying with Section 66(3)(e). He appealed on entirely different grounds. For the

purposes of this decision, the particular grounds do not matter: but I should perhaps say that Mr

Moulder contends that he was not the driver of the vehicle at the relevant time. However, when it

came to his appeal, the parking adjudicator himself raised the point of the omission. It has therefore

been agreed that I will deal substantively with this point as a preliminary issue. This preliminary issue

is of course effectively a test case for other PCNs that were issued with this omission. Depending

upon my decision, the preliminary issue may be determinative of the instant appeal.

At the hearing of the issue on Friday 12 May 1995, the appellant did not himself appear. The authority

were represented by Miss Gabriel MacGregor (the authority's Senior Solicitor), and Mr Patrick Troy

(the authority's Head of Parking Services). I should like to thank both of them for their assistance on

the issue.

The Legal Principles

The authority having accepted the omission of any statement which could comply with Section

66(3)(e), Miss MacGregor usefully referred me to the transcript of a judgment of Mr Justice Sedley in

R -v- The London Borough of Tower Hamlets and the Tower Hamlets Combined Traders

Association, an unreported judgment delivered on 9 July 1993. That case concerned the setting of fees

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for market traders' licenses by the London Borough of Tower Hamlets. In particular, the authority in

that case was required to publish a notice of the proposed fees in a newspaper, and specify a

reasonable period of not less than 28 days in which representation could be made to the authority in

respect of those fees. The newspaper notice published by the authority failed to specify that period.

With regard to such omissions, Sedley J. set out four relevant principles which, it seemed to him, could

be derived from the authorities, namely:

"1. A statutory provision that something "shall" be done as a condition of adopting a

measure ordinarily means that failure to do it renders the measure invalid.

2. Whether such non-compliance has this effect in any one case, however, depends on

the importance of the provision in the context of the statutory purpose.

3. Unless its invalidity is patent, a measure is presumed valid until struck down by a

competent court and so can found certain consequential rights meanwhile.

4. Whether to strike down an invalid measure is a discretionary decision except where

nullity is the legal consequence of non-compliance."

Miss MacGregor says that these principles are correctly derived from the authorities, and I should

approach my task in this case as Sedley J. approached his in the Tower Hamlets case. I consider this

approach a proper one for me in this case, and I am pleased to adopt it.

Having set out these principles and the authorities from which he derived them, Sedley J. approached

the matter before him by considering two questions. First, as a matter of construction, he considered

whether the failure to comply with the statutory requirement was such as to render the measure

invalid. However, even it were invalid, he accepted the submissions of the authority in the case before

him that there would necessarily be a second stage, namely the exercise of judicial discretion.

I interpose here to comment that, with the greatest respect to the Learned Judge, I find this approach

curious in the light of the principles which he set out. His fourth principle envisages a category of

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invalid measure where "nullity is the legal consequence of non-compliance" and where there is no

discretion in the Court in the event of non-compliance. However, in the Tower Hamlets case itself,

although Sedley J. found that, as a matter of construction, the measure before him was "in law a

nullity", nevertheless he went on to say that there was "a further stage of discretion through which the

applicant must pass in order to succeed". Miss MacGregor urged me to adopt this two stage approach

in any event, which I propose to do.

Miss MacGregor primarily contended that the requirement of Section 66(3)(e) is not mandatory but

directory only or, to adopt the terminology of Sedley J, that the failure to comply with the requirement

was not such as to render the PCN invalid. She accepted that a discretion to allow an authority to rely

upon something which was invalid might only be exercised carefully and sparingly but, as very much a

subsidiary argument, she asked that all of the arguments she put in relation to the question of

construction be treated as arguments in relation to the exercise of discretion, if she were unsuccessful

in persuading me that the failure to comply with the relevant provision did not render the PCN invalid.

The Question of Construction

So, as a matter of construction, what is the effect on a PCN of a failure to comply with the

requirement of Section 66(3)(e)? I consider that the PCN is invalid. Indeed, if I were called upon to

decide the point, in my view the PCN is a nullity in the sense used by Sedley J. in the fourth principle

he set out in the Tower Hamlets case.

This is of course a question of statutory construction, in respect of which I must have regard not only

to the words of the statute, but also the statutory context, particularly the purpose of this statutory

provision. In construing Section 66(3)(e), I have in particular taken account of the following points

raised at the hearing.

II. In the Tower Hamlets case, Sedley J. had to construe a statutory provision using the word

"shall". The word used in Section 66(3) is "must" ("a penalty charge notice must state..."). In

London & Clydeside Estates -v- Aberdeen District Council [1980] 1 WLR 182 at 201H (in a

passage cited by Sedley J. in the Tower Hamlets case), Lord Keith said:

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"The word ‘shall’ used in article 3(3) is normally to be interpreted as denoting

a mandatory provision, meaning that what is thereby enjoined is not merely

desired to be done but must be done".

The emphasis is mine. In the course of her submissions Miss MacGregor - perhaps

unguardedly - adopted this terminology in distinguishing a mandatory provision from a

discretionary one. She did, however, formally submit that the words "shall" and "must" have

an identical meaning and, in particular, that neither imports a greater degree of obligation than

the other.

In my view, it may be that the word "must" has more of a ring of obligation, in common day

usage, than the word "shall". However, the word itself cannot be conclusive. With great

respect, I agree with the quotation brought to my attention by Miss MacGregor in the Tower

Hamlets case, but originally attributable to Lord Campbell LC in Liverpool Borough Bank -v-

Turner 29 LJ Ch 827:

"No universal rule can be laid down for the construction of statutes, as to

whether mandatory enactments shall be considered directory only or

obligatory, with an implied nullification for disobedience. It is the duty of

courts of justice to try to get at the real intention of the legislature by carefully

attending to the whole scope of the statute to be construed."

In Howard -v- Bodington (1877) 2 PD 203, Lord Penzance added the following to that

quotation:

"I believe as far as any rule is concerned, you cannot safely go further than

that in each case you must look to the subject matter; consider the importance

of the provision that has been disregarded, and the relation of that provision to

the general object intended to be secured by the Act; and that upon a review

of the case in that aspect decide whether the matter is what is called

imperative or only directory."

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With respect, I consider that this is the proper approach, and it is the approach I adopt.

However, in doing so, I bear in mind Sedley J.'s comment that when these words are used in

respect of something to be done as a condition of adopting a measure, it ordinarily means that

failure to do it renders the measure at least invalid.

III. As indicated above, the Tower Hamlets case concerned the setting of fees for market

licenses. Despite the fact that contravention of parking regulations in London has been

decriminalised, Section 66(3) concerns the imposition of a penalty by the authority, on a

member of the public. In such circumstances, where Parliament has specifically required that

a document must state certain information, then it would only be with great care that it could

be said that the giving of that information was only desired and not obligatory. However, of

course the mere fact that potential penalties are involved is, once more, not conclusive.

IV. Miss MacGregor accepted that all of the sub-paragraphs of Section 66(3) (with the exception

of (e)) are mandatory, in the sense that if the PCN does not state the information in those sub-

paragraphs then it would be a nullity, upon which an NTO (and subsequent enforcement

against the owner) could not be founded. (She also accepted that the provisions of Schedule 6

paragraph 1(2), which set out the information which an NTO "must" state are obligatory in the

same sense.) I consider that concession properly made. Again, whilst not being conclusive, it

assists in putting the relevant provision into context.

V. The purpose of the provision is clearly central to its construction. Miss MacGregor said that

Section 66(3)(e) merely provided the driver with information. She said that omission of the

information provided for by the other paragraphs of that subsection would derogate from the

rights of the recipient of the PCN. She said that it was essential that the omission resulted in a

deprivation of rights of the recipient of the notice, for that omission to be fundamental so as to

render the PCN a nullity. She said that by omitting the information in Section 66(3)(e), the

recipient of the PCN (the driver) was not deprived of any right. I am afraid I do not agree

with this analysis.

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I do not agree that a loss (or a potential loss) of legal rights is a pre-requisite for the omission

of a statutory requirement to render invalid the measure which it affects. In my view, there

may be, even on the question of construction, a "spectrum of possibilities" (a phrase used by

Lord Hailsham in London and Clydeside Estates, as quoted by Sedley J. in the Tower Hamlets

case) or "differences of degree" (a phrase used by Sedley J. himself). Where upon the

spectrum a particular case lies will depend, in part, upon the actual or potential prejudice to

those affected which may result from the omission. This prejudice goes to the gravity of the

breach in relation to the statutory purpose. For the purposes of this case (without deciding the

point), I accept Miss MacGregor's submission that persons affected in this case should be

restricted to recipients of PCNs, i.e. drivers.

Certainly, in terms of legal analysis, despite the submissions of the authority, I see no

difference between the absence of the information provided for by paragraph (e), and the

information provided for by the other paragraphs of Section 66(3). All of the provisions of

Section 66(3) concern the provision of information to the driver: information concerning why

the PCN was issued, how and what to pay, and what may happen in the event of non-

payment. The authority accept that it would be fatal to a PCN if it missed out any of this

information, save for the information as to what may happen in the event of non-payment. But

it seems to me that this information - about what may happen in the event of non-payment - is

also crucial. The information is - or could be - critical to the response of the driver to the

PCN.

As I have explained, the statutory scheme in respect of penalties for contraventions of the

regulation of parking in London has a structure. The first stage is the issue and service of a

PCN which is directed at the driver. The authority has no direct enforcement rights in respect

of the PCN. The second stage - in the event of non-payment of the penalty referred to in the

PCN - is that the authority may issue and serve an NTO on the owner. In my view, it is

fundamental to the scheme that the recipient of a PCN - whether or not he is the owner -

appreciates that there is an alternative to payment, that is a possible second stage, and what

that comprises.

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Where the driver is the owner, I consider he is entitled to know what may happen to him, if he

does not pay. This is not only a new statutory scheme, it is in many ways a new type of

scheme involving (as it does) the payment of penalties to local authorities rather than payment

of fines to central government. In the absence of any information as to what may happen in

the event of non-payment the driver/owner is left completely in the dark. There is no

suggestion on the face of the PCN that there is any alternative to payment and the

driver/owner may (to his detriment) believe that to be the case. He may think there are

potential criminal sanctions for non-payment: in this case, it seems to me that that thought may

have been encouraged (I am sure, inadvertently) by the erroneous reference in the PCN to

non-payment being an "offence". These matters could result in the driver/owner paying a

penalty that he might not pay, if properly informed. In my view, it is not any answer for the

authority to say that, if the driver has any query or concern, he can contact the authority and

they will tell him what will or might occur. There can be no duty on the driver to ascertain

what might happen. In my view, there is a duty on the authority (imposed by the Act) to tell

him what might happen.

Where the driver is not the owner, the same considerations apply, but there are also additional

factors. In the absence of the information required by paragraph (e), the driver does not know

from the PCN that the owner may be pursued, at all. The driver may have no legal obligation

to inform the owner that a PCN has been issued (which may result in the owner being pursued

in respect of the penalty), but he may wish to do so and he may be prejudiced by not doing so.

The London Borough of Sutton accept that there are circumstances in which the owner ought

to be informed, as reflected by their standard form letter to the driver, referred to above:

"...[Y]ou should inform the registered keeper of the fact that a penalty charge notice has been

issued as the owner is liable for payment". For example, where the driver is the employee of

the owner (or in some other relationship with the owner), the driver could be severely

prejudiced by not knowing that the owner can be pursued.

Therefore, whether or not classifiable as a loss of legal rights, I believe that the absence of the

information referred to in Section 66(3)(e) does seriously prejudice (or potentially prejudice)

the driver, whether or not the driver is the owner.

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VI. Finally, Miss MacGregor drew my attention to the fact that Section 66(3)(e) requires a PCN

to state that, if the penalty is not paid within 28 days, a Notice to Owner may be served on the

person appearing to be the owner. She said that, for the purposes of construing this provision,

it would have been "more vital in tone" if the provision was that an NTO had to be served.

This was not one of Miss MacGregor's central submissions, and I am afraid I was not assisted

by it. The provision in paragraph (e) merely reflects Schedule 6, paragraph 1(1), which

provides that the authority may serve an NTO where a PCN has been issued and the penalty

remains unpaid for 28 days. It seems to me that a driver has an equal right to know what may

happen in the event of non-payment, as he would to know what will (certainly) happen in such

an event. Whilst not of course assisting on the question of construction, I observe that the

standard form letter sent out by the London Borough of Sutton in response to any enquiry

about a PCN (referred to above) refers to the fact that "if payment is not received a Notice to

Owner will be sent to the registered keeper of the vehicle" (my emphasis).

Therefore, I consider that the omission in the PCN to specify what might happen in the event of non-

payment within 28 days was fundamental and of central importance to the validity of the PCN.

Consequently, the authority's failure to comply with the statutory requirement, in my view, resulted in

the PCN being invalid and a nullity.

The Exercise of Discretion

It seems to me that the finding that the PCN is a nullity is sufficient to dispose of this matter, in

accordance with Sedley J's fourth principle in the Tower Hamlets case. However, as I have indicated

above, he in fact went on to consider the exercise of discretion in that case and I have been requested

to follow suit by Miss MacGregor. I do so. Having found that the PCN is at least invalid, should I

exercise my discretion to allow it to stand, which would enable an NTO (and subsequent enforcement)

to be based upon it?

In the exercise of my discretion, Miss MacGregor asked me to take into account all of the matters she

raised in connection with construction, to which she did not seek to add. In particular, there was no

evidence that (and Miss MacGregor did not argue that) the authority would be put in an unduly (yet

alone impossibly) difficult position by an inability to rely upon this and - because this is in the nature of

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a test case - no doubt other PCNs. Since November 1994, the authority have changed the form of

their PCNs, to include a statement covering the provisions of Section 66(3)(e).

I have taken into account all of the matters which Miss MacGregor raised. As well as those referred

to specifically above, I bear in mind that the omission was a simple mistake (and not, for example, a

deliberate attempt to flout the purposes of the Act). However, I also bear in mind Sedley J.'s words

from the Tower Hamlets case:

"It is... important, in my judgement, that it should not be thought by local authorities

that they can omit steps of the importance which I consider this step has and take

their chance on rescue by the exercise of the Court's discretion on facts which will

have emerged by the time of trial".

As Miss MacGregor accepted, a discretion to allow an authority to rely upon something which at law

is invalid can only be exercised with great care. This statute concerns the imposition of penalties on

members of the public and, having taken into account all of the matters put to me by Miss MacGregor,

in all of the circumstances, I do not consider that it would be a proper exercise of my discretion to

allow the authority to rely upon the PCN, with this omission.

Directions

In view of my finding on this preliminary issue, the issue is determinative of this appeal. I have found

that the PCN was invalid and a nullity, and it was not such that the authority could rely upon it to found

an NTO or any subsequent enforcement procedure. In these circumstances, I direct the London

Borough of Sutton to cancel PCN No. SU63029551 and the NTO based upon it.

Gary R Hickinbottom

24 May 1995

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