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Main Index.
NEW,
Looking at the form and features of mendacity and spin, with
determinations on HOW to examine fallacies and ambiguities.
The
most notorious one is here,
Fallacy
of Independence, and Impartiality.
Here.
The
FIVE / TEN MINUTE
READ first INSIGHT
Sections
1-intro.
2-issues.
3-claim.
4-The letters,
5
Judge.
6-NON-Compliance
args,
Background
Important
comment on introduction to propositional logic,
the
most powerful forms of argument in rebuttal.
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( Left is a
sculpture not a picture, click to enlarge and look at finger pressure
). Click
Pictures for links, end pictures to enlarge.
As in other FREE
pages available for cases on this website. These pages are by
courtesy of A. Winter. Top
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Introductory reading. top One; of many letters, 5-10 contradictions in that single page, of at least 20.
4 - The Letters, Bold red highlighting indicates this is on the site and available.
8 –
Propositional Logic The Camden Council Code of Conduct 1 Introductions 3 2 Definitions 4 3 Purpose of the code of conduct 5 4 Key Principles 7 5 General Conduct Obligations 8 6 Conflicts of Interest 10 7 Personal Benefit 13 8 Relationship between Council Officials 15 9 Access to information and council resources 17 10 Reporting breaches, complaint handling procedures & sanctions 20 11 Councillor misbehaviour 22
A wonderful reading of the vision, supposedly in law; honoured in its breach, to be adhered to by ALL councils. If you have the code in mind, you will see HOW each particle is HONOURED in its breach. All part of a Public relations exercise , wrapped in the countenance of a code, delivered subtly in the similar frame of Neuro Linguistic Programming, (NLP), all indicating a common purpose and design in the thrust for revenue. There is even a section referred to as PRINCIPLES, that they apparently have, some are highly questionable. A Propaganda piece by the DPE contractors describing their wonderful EXCITING future and contracts for plundering the public. Appeal schedule before a hearing.
Claimant given possession of £multi million building.
Other letters with wholesale contradictions. The witness statement; how to tell economic, economic truth. Go to section 2. A contradiction is incontrovertible culpability in
the context provided. |
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Important comment. Introduction to propositional logic Please examine the FORMS of the proposition on the pages. These are the first abstract forms, that will introduce; as gently as possible, those unfamiliar to propositional logic. (where the form of proposition is derived from the literal meaning of an indicative sentence). As the case progresses, these forms will be shown increasingly, so whoever is receiving a semantic, and persuasive letter; from a person in errant 'authority', will be better able to articulate with accuracy what is wrong with the argument, and controvert it. Using logic to controvert such propositions is irrefutable, and makes any fallacious semantics look immediately untenable. Many government departments use template letters so widely without ever checking if the arguments match reality, they are invariably untenable if you know how to examine the form embedded in the padding semantics and disambiguate them. So the forms of propositions become relevant to any topic, and especially those used by errant peccant authorities like Councils, LGO, and penal organisations whose composition, dynamics and structure are adapted to omissions, stealth and subtraction The first pages demonstrate contradictions and
contrarieties, and a disjunction. A contradiction is a form
known as the third law of thought; the law of
non-contradiction. Its form is true for any propositional
variable, and remains true for all time, space and worlds because
it doesn't rely on empirical corroboration. IE it is apriori;
innate to thought, not aposteriori; requiring external
corroboration. I have used contradictions in courts for many
years, and in all cases, a five to ten, minute delivery usually
renders the other sides argument instantly untenable. A
disjunctive argument structure comes from the second law of
thought; the law of excluded middle. The propositional calculus
will be introduced very slowly, and in understandable low level
language where possible. To say of what is that it is not,
or of what is not that it is, is false, The negation function showing the strict entailment of a contradiction. P......~P
The
tautological function that makes non contradiction ~
( P ·
~P ) true for all values of P
T...(T........F)
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Translated
pages click flag (note these are not perfect by any means, a
translator program has been used, so read with caution and allow
for error, it is intended to help those not so good with English,
and is under expanded development). Some words aren't translated,
so a good familiarity with English is required to bridge the
gaps. It is a lengthy task, patience is required it may take some
months to complete. (German / French have begun) |
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Logic |
'Without prejudice' towards any person whomsoever. top Index; not in chronological order, to 700 page bundle one, traversals, Bundle two unseen as yet, can remain as a new claim not yet made. Focus - what underlies truth, how it is managed. The material deposed here is a copy of the traversals at the public hearing, and is only altered in spelling and proof readings. A running commentary is made throughout, explaining certain concept as required. The writer takes responsibility for any infelicities so deposed, and apologises beforehand for any derogation that is unintended, but has its own merit in desert that is left to the reader to determine from the facts so deposed. Right and left columns are collateral material that came by the way in the research required to assemble this for public consumption. They are placed for the nonce, and the textual material contained in the traversals that are not referring to case law, or scripts whose ownership is credited where possible, leave all the remainder where obviously the author's own coinage as his intellectual property that may not be used for commercial gain whatsoever without his prior consent. That and the book forthcoming is the sole copyright of Quester © , and those named in the copyright header of the book. Three entry point to the case, through portals provided by letters to the claimant that showed immediate contradictions with the defendant's OWN paperwork,. The claimant has not had to bother to find material where Camden Council contradicted its own material there were just too many self contradictions to require further perusal. Not in chronological order. Each takes about 5 minutes speed reading to open the eyes of anticipation of, what TRUTH LIES ahead. Letter 1 – five + contradictions, Letter 2 - TWO false representations, Letter three, - wholesale spin. Theoretical
considerations.
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A citizens' toolbox for everyday. DIY disambiguation of spin, casuistry, sophistry, and malfeasant mindlessness. A selection from over one hundred topics in the forthcoming book. ___________________________________________________________________ |
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Hence the essence of this letter is to invite you, to respond, display, show to me and the world, the substance of the aforementioned code of conduct; without translations, by Ms Fields, acting, on behalf of her directing mind that should be the CEO; since it was to that person I wrote, and she mentioned in reply. I re-iterate Judge S........... asked if you had carried out a review and the answer was - of course – NO. It would not interest me anyway, more than my health and safety, it is a matter for Camden Council's own self esteem, and integrity.
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The claim
schedule. Page 1. Statutes in contrariety, breach or contravention listing “ACT(s)” numbered 1-15, with brief introduction and statement of claim, followed by a more detailed list plus case law rulings, the Parliamentary Ombudsman's six principles of good administration, and others after the introduction. The claimant shall rely on case law rulings, with application of disciplines in reasoning of formal logic, syllogisms, scientific methodology, and contextual inferencing throughout traversal. “Without prejudice whatsoever” Traversal index.
Breaches in SCHEDULE 6, over time, mean and have consequences for the remainder.
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OR READ this first for the introduction. The link is also at the end here. Five graves to Cairo. Stop for 60 seconds, up comes a green eco friendly? dressed chap to help with a ticket for commission. The synopsis, play within the play.
Go to one of the letters, we'll start at say the middle one, the point where the malformed was unavoidable. In proving the breaches of each statute, the course of conduct was monitored and recorded meticulously, each arose in a series of letters that showed incontrovertible logical inconsistencies. Logical contradictions, contrarieties, sub contrarieties and other formal disciples, will show the reasoning applied by the council's top team of 21st century lawyers was irrational throughout. Where a contradiction was identified; far too obviously and easily, it determined and proved in most respects acts of constructive fraud. Where a contradiction exists, the two assertions entail each other's falsity. Meaning where revenue was behind the agenda of an action, it rendered that action as Fraud, within the meaning of the Fraud Act 2006, Section Fraud by false representation. There was no way out of the impasse, that is why the legal team were replaced with a new team coming to court, to play the new game of not being aware, and palliating a litany of breaches as a slight imperfection of the system.
One letter alone, filled with 'admit nothing deny everything' philosophy with at least 7 contradictions. The full original letter, see exhibit 1, the essential textual components. The original reply. The causal antecedents.
Go and look at the letters....
OR READ this first for the introduction. The link is also at the end here. A note on Camden Council sem-antics.
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Full Chronological schedule.
Top |
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Ref: AW / 17071926 PCN number CU02132933 This representation takes three parts; |
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STOP
PRESS Coming very shortly 170 odd page prepared
arguments.
Comment and the full sequence of Hyams V Camden addenda 1 ALG Annual report 2005 / 2006 addenda 2 Four case review at PATAS addenda 3 Aldridge
V Westminster PATAS Same Ruling, Two
Date, You, 28 Days end of addenda
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Traversals 1 (this section is being updated as at Nov 2007).
Comment: What follows is uncertainty to the point of absurdity. Just look at the document, every 27th day and read that you must pay within 28 days, another 28 days, recurring endlessly?
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The Road Traffic Act 1991, Section 66,
The Road Traffic Act 1991, Parts.
Parking penalties in London. 66.—(1) Where, in the case of a stationary vehicle in a designated parking place, a parking attendant has reason to believe that a penalty charge is payable with respect to the vehicle, he may— (a) fix a penalty charge notice to the vehicle; or (b) give such a notice to the person appearing to him to be in charge of the vehicle. (2) For the purposes of this Part of this Act, a penalty charge is payable with respect to a vehicle, by the owner of the vehicle, if— (a) the vehicle has been left— (i) otherwise than as authorised by or under any order relating to the designated parking place; or (ii) beyond the period of parking which has been paid for; (b) no parking charge payable with respect to the vehicle has been paid; or (c) there has, with respect to the vehicle, been a contravention of, or failure to comply with, any provision made by or under any order relating to the designated parking place. (3) A penalty charge notice must state— (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; (c) that the penalty charge must be paid before the end of the period of 28 days beginning 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. (4) In subsection (3)(d) above "specified proportion" means such proportion, applicable to all cases, as may be determined by the London authorities acting through the Joint Committee.
(5) A penalty charge notice fixed to a vehicle in accordance with this section shall not be removed or interfered with except by or under the authority of— (a) the owner, or person in charge, of the vehicle; or (b) the London authority for the place in which the vehicle in question was found. (6) A person contravening subsection (5) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.
(7) Schedule 6 to this Act shall have effect with respect to penalty charges, notices to owners and other matters supplementing the provisions of this section.
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The Road Traffic Act 1991, Section 44,
The Road Traffic Act 1991, Parts.
Parking attendants. Section 44.—(1) After section 63 of the [1984 c. 27.] Road Traffic Regulation Act 1984, there shall be inserted—
Parking attendants. 63A. — (1) A local authority may provide for the supervision of parking places within their area by individuals to be known as parking attendants.
(2) Parking attendants shall also have such other functions in relation to stationary vehicles as may be conferred by or under any other enactment.
(3) A parking attendant shall be— (a) an individual employed by the authority; or (b) where the authority have made arrangements with any person for the purposes of this section, an individual employed by that person to act as a parking attendant.
(4) Parking attendants in Greater London shall wear such uniform as the Secretary of State may determine when exercising prescribed functions, and shall not exercise any of those functions when not in uniform. (comment; NO HAT on, is a breach).
(5) In this section "local authority" and "parking place" have the meanings given by section 32(4) of this Act. "
(2) In section 35 of that Act (provisions as to use of parking places provided under section 32 or 33), subsection (9) shall be omitted.
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The Road Traffic Act 1991, SCHEDULE 6, Breaches here, breach your human rights to a fair and public hearing within a reasonable time. Councils are skipping procedure in malfeasance and issuing charge certificates, either while an appeal is pending, or skipping it completely where they can serve a charge and rely on the ignorance of the motorist knowing his fundamental human rights EU convention Protocol 5 Article 6. This is deplorable unacceptable conduct and needs to be bridled urgently before a wholesale breach of presumption of guilt and appeals process is demolished and it becomes acceptable as reasonable within a so called democracy.
The Road Traffic Act 1991, Parts.
Parking penalties in London.
The notice to owner 1.—(1) 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. (a) the amount of the penalty charge payable; (b) the grounds on which the parking attendant who issued the penalty charge notice believed that a penalty charge was payable with respect to the vehicle; (c) that the penalty charge must be paid before the end of the period of 28 days beginning 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 ("the recipient") may be entitled to make representations under paragraph 2 below; and (g) the effect of paragraph 5 below. (3) The Secretary of State may prescribe additional matters which must be dealt with in any notice to owner. Representations against notice to
owner 2.—(1) Where
it appears to the recipient that one or other of the grounds
mentioned in sub-paragraph (4) below are satisfied, he may make
representations to that effect to the London authority who served
the notice on him. (a) that the recipient— (i) never was the owner of the vehicle in question; (ii) had ceased to be its owner before the date on which the alleged contravention occurred; or (iii) became its owner after that date; (b) that the alleged contravention did not occur; (c) that the vehicle had been permitted to remain at rest in the parking place by a person who was in control of the vehicle without the consent of the owner; (d) that the relevant designation order is invalid; (e) that the recipient is a vehicle-hire firm and— (i) the vehicle in question was at the material time hired from that firm under a vehicle hiring agreement; and (ii) the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice fixed to the vehicle during the currency of the hiring agreement; (f) that the penalty charge exceeded the amount applicable in the circumstances of the case. (5) Where
the ground mentioned in sub-paragraph (4)(a)(ii) above is relied
on in any representations made under this paragraph, those
representations must include a statement of the name and address
of the person to whom the vehicle was disposed of by the person
making the representations (if that information is in his
possession). (a) to consider them and any supporting evidence which the person making them provides; and (b) to serve on that person notice of their decision as to whether they accept that the ground in question has been established. ( Failures here are legion and excused as software / postal faults that are council faults - 2007) Cancellation of notice to owner 3.—(1) Where representations are made under paragraph 2 above and the London authority concerned accept that the ground in question has been established they shall— (a) cancel the notice to owner; and (b) state in the notice served under paragraph 2(7) above that the notice to owner has been cancelled. (2) The
cancellation of a notice to owner under this paragraph shall not
be taken to prevent the London authority concerned serving a
fresh notice to owner on another person. Rejection of representations against notice to owner 4. Where any representations are made under paragraph 2 above but the London authority concerned do not accept that a ground has been established, the notice served under paragraph 2(7) above ("the notice of rejection") must— (a) state that a charge certificate may be served under paragraph 6 below unless before the end of the period of 28 days beginning with the date of service of the notice of rejection— (i) the penalty charge is paid; or (ii) the person on whom the notice is served appeals to a parking adjudicator against the penalty charge; (b) indicate the nature of a parking adjudicator's power to award costs against any person appealing to him; and (c) describe in general terms the form and manner in which an appeal to a parking adjudicator must be made, and may contain such other information as the authority consider appropriate. Adjudication by parking adjudicator 5.—(1) Where an authority serve notice under sub-paragraph (7) of paragraph 2 above, that they do not accept that a ground on which representations were made under that paragraph has been established, the person making those representations may, before— (a) the end of the period of 28 days beginning with the date of service of that notice; or (b) such longer period as a parking adjudicator may allow, appeal to a parking adjudicator against the authority's decision.
This part is deplorable. Camden Council has a duty to serve with the notice of rejection an appeal form to appeal to the parking adjudicator. Where they fail to do either or both, then there is conveniently for them, NO WAY you can appeal. This is used to bully people into submission, and plays on the postal delinquency. Ask insistently for the notice or rejection and appeal form, in writing, recorded until you get it, it is the ambit where Camden Council controls your human rights to an appeal. THE SAME
malfeasance occurs at CPR 75. 3, and you find bailiff visits out
of the blue, askign for more money without real visits to
substantiate their work. Charge
certificates 6.—(1) Where
a notice to owner is served on any person and the penalty charge
to which it relates is not paid before the end of the relevant
period, the authority serving the notice may serve on that person
a statement (a "charge certificate") to the effect that
the penalty charge in question is increased by 50 per
cent. (a) where no representations are made under paragraph 2 above, with the date on which the notice to owner is served; (b) where— (i) such representations are made; (ii) a notice of rejection is served by the authority concerned; and (iii) no appeal against the notice of rejection is made, with the date on which the notice of rejection is served; or (c) where there has been an unsuccessful appeal against a notice of rejection, with the date on which notice of the adjudicator's decision is served on the appellant. (3) Where an appeal against a notice of rejection is made but is withdrawn before the adjudicator gives notice of his decision, the relevant period in relation to a notice to owner is the period of 14 days beginning with the date on which the appeal is withdrawn. Enforcement of charge certificate 7. Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served, the authority concerned may, if a county court so orders, recover the increased charge as if it were payable under a county court order. Invalid notices 8.—(1) This paragraph applies where— (a) a county court makes an order under paragraph 7 above; (b) the person against whom it is made makes a statutory declaration complying with sub-paragraph (2) below; and (c) that declaration is, before the end of the period of 21 days beginning with the date on which notice of the county court's order is served on him, served on the county court which made the order. (2) The statutory declaration must state that the person making it— (a) did not receive the notice to owner in question; (b) made representations to the London authority concerned under paragraph 2 above but did not receive a rejection notice from that authority; or (c) appealed to a parking adjudicator under paragraph 5 above against the rejection by that authority of representations made by him under paragraph 2 above but had no response to the appeal. (3) Sub-paragraph
(4) below applies where it appears to a district judge, on the
application of a person on whom a charge certificate has been
served, that it would be unreasonable in the circumstances of his
case to insist on him serving his statutory declaration within
the period of 21 days allowed for by sub-paragraph (1)
above. (a) the order of the court shall be deemed to have been revoked; (b) the charge certificate shall be deemed to have been cancelled; (c) in the case of a declaration under sub-paragraph (2)(a) above, the notice to owner to which the charge certificate relates shall be deemed to have been cancelled; and (d) the district judge shall serve written notice of the effect of service of the declaration on the person making it and on the London authority concerned. (6) Service
of a declaration under sub-paragraph (2)(a) above shall not
prevent the London authority serving a fresh notice to
owner. Offence of giving false information 9.—(1) A person who, in
response to a notice to owner served under this Schedule, makes
any representation under paragraph 2 or 5(2) above which is false
in a material particular and does so recklessly or knowing it to
be false in that particular is guilty of an offence. Service by post 10. Any charge certificate, or notice under this Schedule— (a) may be served by post; and (b) where the person on whom it is to be served is a body corporate, is duly served if it is sent by post to the secretary or clerk of that body. |
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CPR 75 The same happens here as in SCHEDULE 6, councils skip service of a notice of debt registration, and appeal form / N244 or P2/P3 statutory declaration. Call the TEC centre weekly after receipt of a CHARGE CERTIFICATE, ask if it lodged, and if it is REGISTERED as a debt, THEN GET YOUR OWN statutory declaration / download, or TEC will email you one, and appeal all the way back to the PCN stage where your rights have been abused.
Request -------------------------------------------------------------------------------- 75.3 (1) The authority must file a request in the appropriate form scheduling the amount claimed to be due. (2) The authority must, in that request or in another manner approved by the court officer (a) certify – (i) that 14 days have elapsed since service of the notice of the amount due; (ii) the date of such service; (iii) the number of the notice of the amount due; and (iv) that the amount due remains unpaid; (b) specify the grounds (whether by reference to the appropriate code or otherwise), as stated in the notice, on which the authority claims to be entitled to claim that amount; and (c) state – (i) the name, title and address of the respondent; (ii) the registration number of the vehicle concerned; (iii) the authority's address for service; (iv) the court fee; and (v) such other matters as required by the practice direction. (3) On receipt of a request that meets the requirements of paragraphs (1) and (2), the court officer will order that the amount due may be recovered as if it were payable under a county court order by sealing the request and returning it to the authority. (4) On receipt of a sealed request the authority may draw up an order and must attach to it a form of statutory declaration for the respondent's use. (5) Within 14 days of receipt of the sealed request, the authority must serve the order (and the form of statutory declaration) on the respondent in accordance with Part 6. Camden Council read must as 'may' and skip their clear obligation under the law. A breach of CPR is serious, as is the breach at Schedule 6 above. They just allow 'omissions to occur' then you get a baliff visit askign for £390.24, implying some visits that usually do not take place, as at 2006 / 2007. (6) Where an order is served by first class post (or an alternative service which provides for delivery on the next working day) rule 6.7 is modified so that the date of service will be deemed to be the seventh day after the date on which the order was sent to the respondent.
Electronic delivery of documents -------------------------------------------------------------------------------- 75.4 (1) Where the authority is required to file any document other than the request, that requirement is satisfied if the information which would be contained in the document is delivered in computer-readable form. (2) For the purposes of paragraph (1), information which would be contained in a document relating to one case may be combined with information of the same nature relating to another case. (3) Where a document is required to be produced, that requirement will be satisfied if a copy of the document is produced from computer records.
Functions of court officer -------------------------------------------------------------------------------- 75.5 (1) The practice direction sets out circumstances in which a court officer may exercise the functions of the court or a district judge. (2) Any party may request any decision of a court officer to be reviewed by a district judge. (3) Such a request must be made within 14 days of service of the decision.
Enforcement of orders -------------------------------------------------------------------------------- 75.6 Subject to the 1993 Order and this rule the following rules apply to the enforcement of specified debts – (a) Parts 70 to 73; (b) CCR Order 25, rules 1 and 9; (c) CCR Order 26, rule 5; and (d) CCR Order 27, rules 1 to 7, 7A, 7B, 9 to 16 and 18 to 22.
(Rule 30.2 provides for the transfer between courts in order to enforce a judgment.)
Warrant of execution -------------------------------------------------------------------------------- 75.7 (1) An authority seeking the issue of a warrant of execution must file a request – (a) certifying the amount remaining due under the order; (b) specifying the date of service of the order on the respondent; and (c) certifying that the relevant period has elapsed. (2) The court will seal the request and return it to the authority. (3) Within 7 days of the sealing of the request the authority must prepare the warrant in the appropriate form. (4) No payment under a warrant will be made to the court. (5) For the purposes of execution a warrant will be valid for 12 months beginning with the date of its issue. (6) An authority may not renew a warrant issued in accordance with this Part.
Revocation of order -------------------------------------------------------------------------------- 75.8 Where, in accordance with any enactment, an order is deemed to have been revoked following the filing of a statutory declaration – (a) the court will serve a copy of the statutory declaration on the authority; (b) any execution issued on the order will cease to have effect; and (c) if appropriate, the authority must inform any bailiff instructed to levy execution of the withdrawal of the warrant as soon as possible. Transfer for enforcement -------------------------------------------------------------------------------- 75.9 If an authority requests the transfer of proceedings to another county court for enforcement, the request must – (a) where the authority has not attempted to enforce by execution, give the reason why no such attempt was made; (b) certify that there has been no relevant return to the warrant of execution; (c) specify the date of service of the order on the respondent; and (d) certify that the relevant period has elapsed. |
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Title: London Borough of Wandsworth v Al's Bar & Restaurant Ltd --------------------------------------------------------------------------------
Page No 1
London Borough of Wandsworth v Al's Bar & Restuarant Ltd Case Reference: 2020106430 PCN: WA04516186 Decision 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, Top
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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 because1) 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
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compliant document ought always 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 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
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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
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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
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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)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.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)the recipient- was the owner of the vehicle in question;ceased to be its owner before the date on which the alleged contravention occurred; orits 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
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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
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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
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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
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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
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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. Decision Allowed Adjudicator Martin Wood
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Original Decision Subsequently Reviewed Under Regulation 11 of The Road Traffic (Parking Adjudicators) (London) Regulations 1993 Previous Decision Allowed Adjudicator Richard Crabb
UDecision 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
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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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National Parking Adjudication Service Case No: AY 05003B Adjudicator’s Decision Mrs Deepa Lukha and Aylesbury Vale District Council Penalty Charge Notice AY00350448 Penalty Charge ?60.00 Appeal Allowed I direct the Council to cancel the Penalty Charge Notice and Notice to Owner. Reasons The PCN was issued on 03 May 2005 at 11:25 to vehicle XXXX XXX in West St for being parked in a restricted street during the prescribed hours. However Mrs Lukha did not find the PCNand the first she knew of it was when she received a Charge Certificate demanding payment of ?90. She contacted the council and explained that while she did not deny the contravention, but had never found the PCN, and was denied the right to settle the penalty charge at the reduced rate of ?30. The council have produced copies a number of Notices they issued to Mrs Lukha in connection with this penalty charge, purportedly under the Road Traffic Act 1991, all of which are flawed. Apart from the time scales set for the original PCN, which are 14 and 28 days from the date of issue of the PCN, all the other time limits in the Road Traffic Act 1991 are set from the date of service of the particular notice, i.e. the date when it was delivered to the recipient. Therefore the council must add at least two days to the date of issue if they send notice by first class post, five days if they send them second class. In this case Aylesbury Vale District Council have expressed
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National Parking Adjudication Service Case No: AY 05003B the time limits in their various notices as running from the date of issue of the notice. In some instances they have written it in bold type, thereby highlighting their mistake. 1. The Notice to Owner (NtO) does not conform to paragraph 1(2)(c) of Schedule 6 which since the time period stipulated for paying or making representations is, “before the end of the period of 28 days beginning with the date on which the notice to owner is served (my emphasis)”. The NtO in this case was issued on 15 June 2005, but the time limit shown on the Notice is as follows:
13 July 2005 is 28 days from the issue date of the NtO, not the date of service, which is the date that it would have been delivered to Mrs Lukha. Depending on whether the council sent it first or second class post, the earliest date of service would be 15 July 2005. Therefore by threatening to increase the charge to ?90 on 13 July the council have failed to comply with paragraph 1(2)(4)(e). 2. The Charge Certificate that is dated 27 July 2005 says:
Paragraph 7 of Schedule 6 states, “Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served” (my emphasis). Therefore the Charge Certificate does not comply with Paragraph 7. 3. The Notice of Rejection sent to Mrs Lukha after she had made representations to the council against a second Notice to Owner also fails to comply with Paragraph 4 of Schedule 6. Mrs Lukha had requested to pay the reduced penalty charge of ?30, which would have been her right had she found the original PCN. The council not only glibly, but also surprisingly, in my view, refused that offer on the basis that it was beyond their control that Mrs Lukha had not found the original PCN. They went on to say in the Notice of Rejection:
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National Parking Adjudication Service Case No: AY 05003B
Paragraph 4 of Schedule 6 of the 1991 Act requires that a Notice of Rejection must (my emphasis) state that a charge certificate may be served under paragraph 6 unless before the end of the period of 28 days beginning with the date of service of the notice of rejection” the recipient pays the penalty charge or appeals to the adjudicator. Therefore again the council have failed to comply with a mandatory requirement of the Road Traffic Act 1991. Mrs Lukha has appealed to me against that purported Notice of Rejection. However, since it does not comply with paragraph 4 it does not constitute a Notice of Rejection at all. The council enforcement process throughout this case has wrongly expressed the mandatory requirements of the 1991 Act by attempting to shorten the time that the vehicle owner has to complete payment or the next process. I find that Mrs Lukha is under no obligation to pay a penalty charge demanded on a non-compliant notice and accordingly her appeal is allowed. Given the tortuous history of this case I see fit to direct the council to cancel the PCN as well as the other defective notices. Caroline Sheppard Parking Adjudicator appointed under Section 73 of the Road Traffic Act 1991 Date: 09 May 2006
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Barnet V Moses - High Court Ruling
Neutral Citation Number: [2006] EWHC 2357 (Admin) CO/3355/2006 IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
B e f o r e : MR JUSTICE JACKSON
THE QUEEN ON THE APPLICATION OF THE LONDON BOROUGH OF BARNET COUNCIL (CLAIMANT) -v - THE PARKING ADJUDICATOR (DEFENDANT)
THIS TRANSCRIPT HAS BEEN HIGHLIGHTED IN RED AND BLUE, (NOT MODIFIED IN ANY OTHER WAY) To make it easier to go directly to the relevant sections and understand quickly if and why a PCN is compliant or not...... Click HERE to go directly to the first highlight, and subsequent sections thereafter. Computer -Aided Transcript of the
Stenograph Notes of ____________________ MR M LEWIS AND MISS X MONTES
-MANZANO (instructed by LB Barnet) appeared on behalf of the
CLAIMANT HTML VERSION OF JUDGMENT
Crown Copyright ? MR JUSTICE JACKSON: This judgment is in six parts, namely: Part 1. Introduction Part 2. The Facts Part 3. The Present Proceedings Part 4. The Date of the Notice Part 5. The Effect of the Extra Day Part 6. Conclusion Part 1. Introduction This is a case about two parking tickets. The claimant in these proceedings is the Council of the London Borough of Barnet, to which I shall refer as "Barnet". The defendant in these proceedings is the Parking Adjudicator who issued a written decision dated 6th March 2006. Mr Hugh Moses is the motorist to whom the two parking tickets the subject of this action relate. Mr Moses is identified in these proceedings as an interested party. The correct name for what is commonly called a parking ticket is "Penalty Charge Notice". This is generally abbreviated to "PCN". I shall adopt that abbreviation. I must now outline the statutory framework within which this litigation arises. For many years, the contravention of parking controls was a criminal offence prosecuted in the Magistrates' Courts. The Road Traffic Act 1991 (to which I shall refer as the "1991 Act") introduced a new scheme for the civil enforcement of parking controls. Under the new scheme, the enforcement of parking controls is carried out by local authorities. A range of financial penalties are payable for the contravention of parking controls. Under this scheme, the owner of the vehicle rather than the driver is liable for the penalty, subject to certain exceptions. Section 66 of the 1991 Act is headed "Parking penalties in London" and it provides as follows: "(1) Where, in the case of a stationary vehicle in a designated parking place, a parking attendant has reason to believe that a penalty charge is payable with respect to the vehicle, he may - - (a) fix a penalty charge notice to the vehicle; or (b) give such a notice to the person appearing to him to be in charge of the vehicle. (2) For the purposes of this part of this Act, a penalty charge is payable with respect to a vehicle by the owner of the vehicle if - - (a) the vehicle has been left - - (i) otherwise than as authorised by or under any order relating to the designated parking place; or (ii) beyond the period of parking which has been paid for; (b) no parking charge payable with respect to the vehicle has been paid; or (c) there has, with respect to the vehicle, been a contravention of, or failure to comply with, any provision made by or under any order relating to the designated parking place. (3) A penalty charge notice must state - - (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; (c) that the penalty charge must be paid before the end of the period of 28 days beginning 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.
(4) In subsection (3)(d) above "specified proportion" means such proportion applicable to all cases, as may be determined by the London authorities acting through the Joint Committee . . . (7) Schedule 6 to this Act shall have effect with respect to penalty charges, notices to owners and other matters supplementing the provisions of this section." In this judgment I shall use the term "serve" as a compendious term to embrace the two alternative methods of delivering a PCN set out in section 66(1) of the 1991 Act. Schedule 6 to the 1991 Act provides: "1(1) 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 . . . 2(1) Where it appears to the recipient that one or other of the grounds mentioned in subparagraph (4) below are satisfied, he may make representations to that effect to the London authority who served the notice on him. (2) Any representations under this paragraph must be made in such form as may be specified by the London authorities, acting through the Joint Committee. (3) The authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the notice was served. (4) The grounds are - - (a) that the recipient - - (i) never was the owner of the vehicle in question; (ii) had ceased to be its owner before the date on which the alleged contravention occurred; or (iii) became its owner after that date; (b) that the alleged contravention did not occur; (c) that the vehicle had been permitted to remain at rest in the parking place by a person who was in control of the vehicle without the consent of the owner; (d) that the relevant designation order is invalid; (e) that the recipient is a vehicle hire firm and - - (i) the vehicle in question was at the material time hired from that firm under a vehicle hiring agreement; and (ii) the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice fixed to the vehicle during the currency of the hiring agreement; (f) that the penalty charge exceeded the amount applicable in the circumstances of the case . . . (7) It shall be the duty of an authority to whom representations are duly made under this paragraph - - (a) to consider them and any supporting evidence which the person making them provides; and (b) to serve on that person notice of their decision as to whether they accept that the ground in question has been established." Paragraph 5 of Schedule 6 to the 1991 Act enables the vehicle owner to appeal against an adverse decision to a Parking Adjudicator. Any reference in this judgment to "Adjudicator" is a reference to a Parking Adjudicator. The Road Traffic (Parking Adjudicators) (London) Regulations 2003 provide for appeals to be brought against the decisions of Parking Adjudicators. An appeal may take the form of a review on paper, or it may be dealt with at a hearing if either party so requests. The person hearing the appeal will be another Parking Adjudicator of equal status to the first Adjudicator. As can be seen from section 66 of the 1991 Act and from Schedule 6 to that Act, the scheme as originally established related only to London. However, the scheme has subsequently been extended to a number of other areas around the country. By way of example, the Road Traffic (Permitted Parking Area and Special Parking Area) (Metropolitan Borough of Bury) Order 2002 provides that section 66 of the 1991 Act and Schedule 6 to that Act should apply, subject to certain modifications, to the Metropolitan Borough of Bury. The London Local Authorities Act 2000 (to which I shall refer as "the 2000 Act") contains provisions which amplify the scheme for civil enforcement of parking controls. Section 4 of the 2000 Act provides that where a contravention of parking control is detected by camera, a PCN may be served by post on the relevant vehicle owner within 28 days of the contravention. Section 5 of the 2000 Act provides that in a situation where a parking attendant is prevented from issuing a PCN, then a PCN in relation to that contravention may be served by post on the vehicle owner within 28 days. Having outlined the statutory framework, I must now turn to the facts of the present case. Part 2. The Facts On the morning of 31st March 2005, Mr Moses parked his Mercedes car in a residents' parking space at Woodville Road in Barnet. A parking attendant observed the vehicle and issued a PCN which read as follows: "PENALTY CHARGE NOTICE Road Traffic Act 1991 (AS AMENDED) Number: BA25117544 VRM: Y562OLF Make: Mercedes Contravention believed committed: 15. Parked in a Residents' parking space without clearly displaying a valid Residents' parking permit. Street: WOODVILLE ROAD (BX). Date: 31/03/05. Time: 11.27. A PENALTY CHARGE OF ?80 IS DUE WITHIN 28 DAYS OF ISSUE. ?40 will be accepted in full and final settlement if received within 14 days of the date of this notice. Parking Attendant No: 201." There is then a line of perforations, below which there is a slip reading as follows: "Number: BA25117544 Date of offence: 31/03/05 Total charge fee: 80.00 Discount if paid within 14 days: 40.00 Payment enclosed A receipt will not be issued unless requested and a stamped addressed envelope is provided." On the back of the PCN there are various pieces of information provided, including the address to which payment should be sent, and the following piece of information: "If the discounted payment is not received within 14 days, and full payment is not made within 28 days the registered keeper or the person who the borough believes to be the owner of the vehicle may receive a Notice to Owner asking for payment." The parking attendant either fixed the notice to the vehicle or handed it to Mr Moses. On the evidence, it is unclear which method of service was employed. A little while later, Mr Moses drove to Golders Green Road and parked his car there. His car attracted the attention of a different parking attendant who issued a PCN which read as follows: "PENALTY CHARGE NOTICE Road Traffic Act 1991 (AS AMENDED) Number: BA 30078011 VRM: Y562OLF Make: Mercedes. Contravention believed committed: 01 Parked in a restricted street during prescribed hours. Street: GOLDERS GREEN ROAD (BX) Date: 31/03/05 Time 12:05 A PENALTY CHARGE OF ?80 IS DUE WITHIN 28 DAYS OF ISSUE. ?40.00 will be accepted in full and final settlement if received within 14 days of this notice. Parking Attendant No: 230." There was then a perforated line. Below that is a tear -off slip reading: "Number: BA30078011 Date of offence: 31/03/05 Total charge/fee: 80.00 Discount if paid within 14 days: 40.00." On the back of the PCN there is the same information as was given on the other PCN. The parking attendant attempted to serve the PCN, but it is now accepted that Mr Moses successfully drove away before service was achieved. Mr Moses did not pay within 28 days the penalty charge which had been demanded in either of the PCNs. Accordingly, Barnet sent a notice to owner in respect of each PCN to Mr Moses in accordance with paragraph 1 of Schedule 6 to the 1991 Act. Mr Moses made representations to Barnet, pursuant to paragraph 2 of Schedule 6, in respect of each of the two incidents. Unfortunately, those representations have not been put in evidence. So I cannot enumerate the points taken by Mr Moses in those representations. Suffice it to say that the representations did not find favour with Barnet. Barnet decided that the grounds relied upon by Mr Moses had not been established. Mr Moses appealed against Barnet's two adverse decisions to a Parking Adjudicator, pursuant to paragraph 5 of Schedule 6 to the 1991 Act. Mr Moses' two notices of appeal have not been put in evidence and so I can only speculate about what they said. Mr Moses' two appeals were heard together by Mr Timothy Thorne, a Parking Adjudicator, on a date which is not revealed by the bundle. Mr Moses was represented by Mr Barry Segal at the hearing. Mr Moses gave oral evidence in support of the two appeals, and he also put in written evidence. Barnet submitted written evidence but was not represented at the hearing of the appeals. Mr Thorne, having considered the oral and written evidence, allowed both appeals in two written decisions dated 18th February 2006. Mr Thorne's reasons in respect of the first appeal read as follows: "After hearing oral evidence from Mr Moses I am satisfied that he is an honest and reliable witness. I accept that when he parked his vehicle in the residents' bay he properly displayed a valid visitor's permit and that such permit was properly displayed at the time the PCN was issued. He supplied me with the original permit and his evidence was corroborated by the written statement of Mrs Anne Kramer. I therefore conclude that the respondent has failed to prove on a balance of probabilities that the alleged contravention occurred and I therefore allow the appeal on the merits of the case. In addition, it was submitted by Mr Segal that the PCN was invalid in any event as it did not contain the date of issue. He argued therefore that the PCN was not issued in accordance with the provisions of section 66 Road Traffic Act 1991. He relied upon the analysis of this legislation made by a Parking Adjudicator in the case of McArthur v Bury Metropolitan Council [Case No BC 188]. This decision is not binding on me but is persuasive. I agree with the reasoning of the decision and I am satisfied that the PCN in this case is invalidated by its failure to specify the date of issue (as opposed to the date of alleged contravention). The appeal is therefore allowed for all of the reasons specified above." Mr Thorne's reasons in respect of the second appeal read as follows: "After hearing oral evidence from Mr Moses I am satisfied that he is a honest and reliable witness. I accept that he has a clear and accurate recollection of the relevant incident and that, upon seeing the Attendant, he drove off before the Attendant had an opportunity of serving the PCN. I therefore conclude that the respondent has failed to prove on a balance of probabilities that the PCN was lawfully issued by being attached to the vehicle or handed to the driver. I therefore allow the appeal on the merits of the case. In addition, it was submitted by Mr Segal that the PCN was invalid in any event as it did not contain the date of issue. He argued therefore that the PCN was not issued in accordance with the provisions of section 66 Road Traffic Act 1991. He relied upon the analysis of this legislation made by a National Parking Adjudicator in the case of McArthur v Bury Metropolitan Council [Case No BC 188]. This decision is not binding on me but is persuasive. I agree with the reasoning of the decision and I am satisfied that the PCN in this case is invalidated by its failure to specify the date of issue (as opposed to the date of alleged contravention). The appeal is therefore allowed for all of the reasons specified above." Barnet accepted the Adjudicator's factual decisions in respect of both alleged contraventions. Accordingly, Barnet no longer pursued Mr Moses for payment in respect of either PCN. Nevertheless, Barnet took the view that the second reason given by the Adjudicator in each appeal decision was legally incorrect. The second reason was, in each case, that the PCN did not comply with section 66 of the 1991 Act. Since Barnet has issued many PCNs in similar form, the Adjudicator's decisions had far reaching consequences. Accordingly, on 27th February 2006, Barnet appealed against Mr Thorne's two decisions, pursuant to the 2003 Regulations. Barnet served a single "application to review and vary" in respect of both matters. Barnet challenged only the second of the two reasons given by the Adjudicator, namely the invalidity of the PCNs. Barnet did not request an oral hearing and it did not seek to call evidence. Barnet's application dated 27th February was referred to a different Parking Adjudicator, Mr Austin Wilkinson. Mr Wilkinson dismissed that application in a written decision dated 6th March 2006. The core passages in Mr Wilkinson's decision read as follows: "The issues exercising the Adjudicators in both McArthur and Al's Bar were more extensive and fundamental than is suggested in the Council's submissions. In both cases the Adjudicators had to consider the wording of the relevant PCNs and apply to them the requirements of section 66. In concluding as they did, both Adjudicators specifically pointed out that the need for substantial compliance was because section 66(3)(c,d and e) required the recipient of the Notice to have communicated to him/her a certainty as to the requirement to pay AND certainty in the period of time given for the payment. There must therefore be a 'date of the notice' and there must be a description of the payment period for both the full penalty and the discounted penalty which refers to that date: 'beginning with the date of the notice'. In these instant appeals the date half way up the PCN is simply a 'date'. In fact it is the date of the allegation (as a result of section 66(3)(a)). The base of the PCN has a payment tear -off slip. Strictly this might be regarded as not being part of the PCN at all - - the view of the Adjudicator in McArthur. But even if it were an integral part, it does not refer to a date of the Notice. It refers to a date of contravention - - exactly the same thing as the date of the allegation further up. (In fact the sample PCN does this. The ACTUAL notices adjudged by the Adjudicator referred to a date of 'offence'. De -criminalised contraventions are not offences and have not been so since 1991.) The PCNs inform the recipient that the penalty ' . . . is due within 28 days of issue'. This wording is fundamentally non -compliant for two reasons: (1) It does not refer to any date; and none of the date positions relied upon are dates 'of issue'. There should be a date of notice described as such and it should relate to the description of time period. (2) The time period is plainly wrong for reasons fully aired by the Chief Adjudicator in 2002. The time period must 'begin with' the date of the notice to be compliant with Statute. The wording used would appear, upon accepted case law, to add a day onto the payment period ... '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 up to local councils to ensure their PCNs are drafted in compliance with the Statute. These appeals show only too clearly that the findings and concerns of the Adjudicators over several years have been disregarded - - a most unattractive basis for asserting good administration. I conclude that Mr Thorne was correct to find as he did that the PCNs in these appeals were not compliant and could not be enforced." GO TO next Highlighted section.... Barnet was aggrieved by Mr Wilkinson's decision. Accordingly, Barnet commenced the present proceedings. Part 3. The Present Proceedings By a claim form issued on 19th April 2006, Barnet applied for judicial review of the decision made by the Parking Adjudicator, Mr Austin Wilkinson, on 6th March 2006. Barnet contends in its claim form that, in so far as section 66(3) requires a PCN to state the date of the notice, both PCNs complied with that requirement. Barnet further contends that although the periods of time stated in the PCNs for discounted payment and for full payment are one day longer than the periods specified in section 66(3) of the 1991 Act, this does not render either PCN invalid. Barnet contends that no prejudice was caused by any technical defects in the notices. Accordingly, this court should grant a declaration that the two PCNs "did comply wholly or substantially with the requirements of section 66(3)". Certain additional parts of the declaration sought in the claim form were not pursued in oral argument. On or about 10th May 2006, the Parking Adjudicator served an acknowledgment of service which included detailed grounds supporting his decision. On 8th June 2006 Dobbs J granted permission to proceed with the claim for judicial review and directed an expedited hearing. Following the grant of permission, the defence evidence was served. This comprises a witness statement by Mr Wood, the Chief Parking Adjudicator for London, together with exhibits. Mr Wood's statement sets out much helpful background information and includes the following facts. There are 52 Parking Adjudicators in London. Approximately 5 million PCNs are issued each year in London alone in respect of parking matters. Approximately 1 per cent of these PCNs are challenged by way of appeal. Over the years, there have been a number of cases in which Parking Adjudicators have held PCNs to be invalid on account of non -compliance with statutory requirements. In their annual reports, the London Parking Adjudicators have drawn attention to this state of affairs and have encouraged local authorities to comply with the statutory requirements, in order to avoid the risk of prejudice to motorists (see the annual reports for the years 2002 to 2003, and 2003 to 2004). On 31st July, Barnet served evidence in reply comprising a witness statement by Mr Edward O'Bree, a barrister employed in Barnet's legal department. Mr O'Bree states that Barnet has now adopted a new form of PCN, which meets the criticisms made by the Parking Adjudicator and which strictly complies with the requirements of section 66 of the 1991 Act. He exhibits a specimen of the new form of PCN which, as can be seen, clearly complies with the statutory requirements. Mr O'Bree also outlines the practice of Barnet in relation to PCNs, but an objection has been taken to that part of his evidence on the ground that it comes too late in the day. The essential objection is that evidence of this nature ought to have been called during the course of the adjudication process so that the evidence could be tested by cross -examination and so that the Adjudicator could make appropriate findings of fact. This action came on for hearing yesterday. Mr Meyric Lewis represents Barnet. Mr Ian Rogers represents the Parking Adjudicator. I am grateful to both counsel for their assistance and for the excellence of their skeleton arguments and oral submissions. Mr Moses, the interested party, has not taken any part in these proceedings before yesterday. However, yesterday Mr Barry Segal, who represented Mr Moses at the hearing of the first appeal to a Parking Adjudicator, attended court. He made brief oral submissions in opposition to Barnet's appeal. I am grateful to Mr Segal for his assistance. I shall now turn to the two principal issues in this case, namely the date of the notice and the effect of the extra day. Part 4. The Date of the Notice There are 35 different forms of parking contravention which may be committed. These include, for example, parking in a restricted street during prescribed hours, or parking in a residents parking space without displaying a permit, or parking in a car park which is closed. This last form of contravention may require some ingenuity. Section 66(3)(a) of the 1991 Act requires a PCN to state the grounds upon which it is believed that a penalty charge is payable. I would expect any such statement of grounds to identify the form of contravention and to state where and when the contravention occurred. Indeed, both the PCNs in this case did just that. The core part of the first PCN reads as follows: "Contravention believed committed: 15 Parked in a Residents' parking space without clearly displaying a valid Residents' parking permit. Street: WOODVILLE ROAD (BX) Date: 31/03/05. Time: 11.27. The date 31st March, when read in that context, must be the date upon which the contravention occurred. The core part of the second PCN reads as follows: "Contravention believed committed: 01 Parked in a restricted street during prescribed hours. Street: GOLDERS GREEN ROAD (BX) Date: 31/03/05. Time: 12.05." The date 31st March, when read in that context, must be the date upon which the contravention occurred. Section 66(3)(b) of the 1991 Act requires the amount of the penalty charge to be stated. There is no dispute that this requirement was complied with in the present case. Section 66(3)(f) of the 1991 Act requires the PCN to state the address to which payment must be sent. There is no dispute that this requirement was complied with in the present case. Section 66(3)(c) requires the PCN to state: " . . . that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice." Section 66(3)(d) requires the PCN to state: " . . . 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." Section 66(3)(e) requires the PCN to state: " . . . 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." In my view, these three subsections, either as a matter of construction or by clear implication, require that the date of the notice should be stated on the notice. If this is not done, the statutory purpose of section 66(3)(c),(d) and (e) will be thwarted. The date of the notice will usually be the same as the date of contravention but this is not always the case. Let me give three examples: (1) A parking attendant attempts to issue a penalty notice but is prevented from doing so. Accordingly, pursuant to section 5 of the 2000 Act, a PCN is prepared on a later date and posted to the owner. (2) Many parking attendants work at night. Shortly before midnight a vehicle is observed parked on double yellow lines. At midnight the contravention comes to an end. This is perfectly feasible as the prescribed hours in many streets end at midnight. The parking attendant prepares a PCN and fixes it to the windscreen shortly after midnight. In this example, the date of the notice is one day after the date of the contravention. (3) A parking contravention is recorded by camera. On a later date a PCN is issued and posted to the vehicle owner pursuant `to section 4 of the 2000 Act. It seems to me that section 66 requires two dates to be stated on a PCN. These are the date of the contravention and the date of the notice. The need for both dates to be stated has been stressed by Parking Adjudicators on more than one occasion. In Al's Bar and Restaurant Ltd v London Borough of Wandsworth (28th October 2002 Case No 2020106430) the Parking Adjudicator, Mr Martin Wood, considered a number of criticisms which were levelled at a PCN issued by the London Borough of Wandsworth. Mr Wood held that literal compliance with section 66 was not required. It was sufficient if there was substantial compliance. I agree with that analysis. In relation to the third criticism levelled at the Wandsworth PCN, Mr Wood said this at pages 6 to 7 of his decision: "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 9.24 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 'Payment Slip'. At the top of the document, the 'notice number' 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 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." NEXT HIGHLIGHT......... Three years later, a similar issue arose in relation to a PCN issued by the Bury Metropolitan Borough Council. In McArthur v Bury MBC (4th April 2005, Case No BC 188) a PCN was issued which showed the date of contravention but not the date of the PCN. A Parking Adjudicator, Mr Mark Hinchliffe, held that the PCN was invalid on this ground. At pages 5 to 6 of his decision, Mr Hinchliffe said this: "I am not the first Parking Adjudicator to consider these matters, and I am mindful of the desirability of consistency. I am required to reach my own decisions whilst having regard to the previous decisions of colleagues both in England and Wales, and in London. Accordingly, I have reached a number of conclusions: • Section 66(3)(c),(d) and (e) requires every PCN to convey certain specified information. The use of the words 'must state that' suggests that the exact words of the section are not mandatory, but the PCN must accurately convey the information set out in the subsections . . . • To comply with section 66(3)(c), a PCN must have a date. The date of the contravention is not the date of the notice even if, in most cases, the PCN will be issued on the same day as the contravention. I accept that, in Bury, there are no notices issued after the event. Nevertheless, the absence of a date of notice is a serious problem because a motorist will not always be sufficiently au fait with the Act to appreciate that as a matter of practice (but not as a matter of law) the date of the contravention will usually be the same as the date of the notice. It is perhaps worth remarking, by way of example, that in certain circumstances in London contraventions can be photographed and then subsequently followed up with a PCN issued on a completely different date. In Bury, a motorist will search in vain for a 'Date of Notice' or 'Date of Issue' on the face of the PCN. A date is necessary because the 28 day period begins with "the date of the notice". In my view, if Parliament had intended the date of the contravention to be the starting point for the relevant periods, it would have said so. The specimen PCN in the guidance specifically shows a 'Date of Issue' at the top. The tear -off slip is not part of the PCN and may be detached. The Bury PCN does not comply with section 66(3)(c), nor was it modelled on the guidance. There is a serious possibility that real prejudice could be caused as a consequence of this omission because of potential uncertainty as to when the 28 day period begins. The same reasoning applies to 'the period of 14 days beginning with the date of the notice' referred to in section 66(3)(d)." I find the reasoning in the passages quoted from McArthur and Al's Bar to be compelling. The statutory requirements are simple and clear. Compliance is not difficult. The Department of Transport has published a specimen form of PCN for the assistance of local authorities. This specimen form has been available for over 10 years. It has "Date of Issue ..." on the top line. There really is no excuse for local authorities who persist in issuing PCNs which do not state the date of the notice. There are good policy reasons why PCNs should comply with the statutory requirements. These documents are issued in large numbers. They often change hands. A PCN may, for example, be issued to a driver on one date and handed over by the driver to the owner on a later date. When a PCN reaches the owner, he or she may wish to pay the discounted charge. There must always be certainty about the date when the notice was issued and the dates when the various periods for payments will expire. Let me now turn to the present case. The two PCNs issued by the parking attendant in Barnet on 31st March 2005 both showed the date of the contravention. Neither PCN showed the date of the notice. The date on which the notice was issued ought to have been shown as a separate entry on the notice. On this ground alone, I hold that neither PCN achieved substantial compliance with section 66 of the 1991 Act. Mr Lewis submits that even if there was non -compliance in this respect, nevertheless no prejudice was caused. PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise. In the present case, the two PCNs issued by Barnet on 31st March 2005 did not comply with section 66(3)(c),(d) and (e) of the 1991 Act. Accordingly, the requirements of section 66 were not satisfied and no financial liability was triggered either by the PCN or by any subsequent stage in the process such as the notice to owner. For the above reasons, I conclude that Mr Wilkinson, the second Parking Adjudicator in the present case, was correct to hold that the two PCNs were not compliant with the 1991 Act and were therefore invalid. It follows from this conclusion that Barnet is not entitled to the relief which it seeks and these proceedings must be dismissed. Part 5. The Effect of the Extra Day Since the defendant has succeeded on the first issue, it follows that Barnet's claim must be dismissed and the second issue does not arise for decision. Nevertheless, having heard argument upon this issue, I shall comment upon it. Both PCNs contain the sentence "a penalty charge of ?80 is due within 28 days of issue." As that phraseology has been interpreted by the courts, the computation of the 28 days begins on the day after the date of issue. Both PCNs contain the sentence: "?40 will be accepted in full and final settlement if received within 14 days of the date of this notice." As that phraseology has been interpreted by the courts, the computation of the 14 days begins on the day after the date of issue. Both PCNs have on the back a sentence which reads: "If the discounted payment is not received within 14 days and full payment is not made within 28 days, the registered keeper or the person who the borough believes to be the owner of the vehicle may receive a notice to owner asking for payment." As that phraseology has been interpreted by the courts, the computation of the 14 day period and the 28 day period referred to in that sentence begins on the day after the date of issue. Thus it can be seen that in each case the PCN adds one day to the time period stipulated by section 66(3) of the 1991 Act. Mr Rogers, for the Parking Adjudicator, contends that this departure are invalidates the notice. Mr Lewis, for Barnet, contends that the gifting of an extra day is an indulgence which benefits the motorist and cannot invalidate the notice. This issue arose in Al's Bar. The Adjudicator heard evidence from a Senior Parking Officer of Wandsworth Borough Council, from which it emerged that in practice the Council did not always allow the extra time indicated in the PCN. The Adjudicator held that the incorrect statement of the time period in the PCN (in conjunction with other defects) invalidated the PCN. In McArthur, a similar point arose. At page 6 of his decision the Adjudicator said this: "The phrases 'within 28 days' and 'within 14 days' convey different information from that specified in section 66(3). By legal convention, where the 'within' formula is deployed, the day upon which the triggering event occurs is excluded from the period. The 14 and 28 day periods referred to in section 66, however, include the date of the notice. The wording on the Bury PCN, therefore, does not comply with the requirements imposed by section 66(3). The Guidance, however, also uses the 'within' formula and it is hard to see how real prejudice could arise by virtue of allowing an extra day for payment. Modelling a PCN on the specimen at ANNEX 12.1 of the Guidance is urged by the bold italics of paragraph 12.1 of the Guidance. I therefore find that, in this respect, the wording of the Bury PCN does not warrant judicial criticism, and it is therefore without adverse legal consequence." It seems to me that the different decisions which were reached on this point in Al's Bar and McArthur arise from differences in the evidence. In McArthur there appears to have been no evidence that what the Council gave with one hand it took away with the other. In the present case, there has been no investigation of this issue before either Parking Adjudicator. The effect of the extra day was not an issue in the appeal to the first Adjudicator, Mr Thorne. Likewise, the effect of the extra day was not a matter raised in Barnet's "application to review and vary" dated 27th February 2006. No evidence relevant to this issue was adduced at the hearing before the first Adjudicator, Mr Thorne, or in the proceedings before the second Adjudicator, Mr Wilkinson. In those circumstances, I do not think that Mr Wilkinson ought to have dealt with the effect of the extra day in his decision dated 6th March 2002. This was a new point. If Mr Wilkinson was minded to invalidate the two PCNs on this additional ground, he ought to have informed all parties of what he had in mind and given them an opportunity to comment. If either party had wished to adduce evidence on this point (as was done in Al's Bar), Mr Wilkinson ought to have admitted such evidence. It follows from the foregoing that Mr Wilkinson's decision on the effect of the extra day cannot stand. If the two PCNs were otherwise valid notices, the proper course might possibly be to remit the matter to the Parking Adjudicator so that he could (a) receive any evidence which either party wished to submit and (b) hear argument on the effect of the extra day. In the present case, however, no useful purpose would be served by such a course. I shall not, therefore, invite counsel to make further submissions on what, hypothetically, would be an appropriate remedy. For the reasons set out in Part 4 above, I have already held that the two PCNs are non -compliant and that the claimant is not entitled to the relief sought. Part 6. Conclusion For the reasons set out in Part 4 of this judgment, both the first and second Parking Adjudicators were correct to hold that the two PCNs issued by Barnet on 31st March 2006 failed to comply with section 66 of the 1991 Act. Both Parking Adjudicators were correct to hold that the PCNs were invalid on that ground. Accordingly, Barnet is not entitled to the declaratory relief which it seeks and these proceedings must be dismissed. MR ROGERS: My Lord, may I thank you for the speed with which you have managed to deliver judgment and also the care which you have obviously taken. It has been agreed between the parties that there should be no order as to costs, subject to your view. MR JUSTICE JACKSON: I am perfectly content to make no order as to costs. You are both public authorities and that sounds very sensible. MISS MONTES -MANZANO: My Lord, in light of the judgment I have a brief application for permission to appeal. MR JUSTICE JACKSON: Yes, Miss Montes -Manzano. MISS MONTES -MANZANO: My Lord, we say that this matter has a reasonable prospect of success on the issue, which has never been previously judicially decided by the court, that the PCN in the form previously adopted by Barnet is substantially compliant with the requirements of section 66 of the 1991 Act. Also, there are compelling reasons why this should be heard by the Court of Appeal. First of all, the importance attached by both parties to the matter and to the issue, and secondly, the fact that this issue has never been judicially decided before. Those are my submissions, my Lord, unless I can assist you any further. MR JUSTICE JACKSON: Thank you. MR ROGERS: My Lord, it is obviously a matter for you. I can only assist the court in saying that it is true that you are the first judge to consider this issue. However, you have applied the approach set out in London & Clydeside and Jeveanthan, and the House of Lords has also added that that is the approach to be followed. My Lord, it is a matter for you, but I would feel confident in urging you to refuse permission to appeal. MR JUSTICE JACKSON: This is an application for permission to appeal to the Court of Appeal against the judgment which has just been delivered. There are two grounds upon which permission to appeal might be granted. They are: (a) that the court considers that the appeal would have a reasonable prospect of success, or (b) that there is some other compelling reason why the appeal should be heard (see rule 52.3(6) of the Civil Procedure Rules). Counsel for the claimant relies upon both grounds in the application for permission. So far as the first ground is concerned, on the view which I take of the matter the outcome of this case is clear. This court has come to a decision which is in line with a body of jurisprudence developed by Parking Adjudicators. I do not consider that this appeal has a reasonable prospect of success. So far as the second ground is concerned, it should be borne in mind that Barnet has now amended its form of penalty charge notice so as to comply with the requirements of the Act. Therefore, the judgment which has just been given will have no impact upon the current form of notices being issued by Barnet. The interest in this matter from Barnet's point of view is purely a historical one, in so far as there are outstanding challenges to old penalty charge notices. In that situation, in my view, this is not a case where there is some other compelling reason why the appeal should be heard. Accordingly, for all of the above reasons, this application for permission to appeal is refused.
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Restitution Case Precedent Southend on Sea ?? November 2006. JH ....... . .
November 2006
Re: HH v Southend-on-sea Borough Council. Claim no. with the court.
Dear Judge E,
I write in response to the Defendants Amended defence received by me on the ?? November 2006. I am seeking the restitution of four parking tickets paid for, by mistake by myself , they are as follows:-
. . .
And .
.
..
The total amount that I am claiming from the Southend Borough Council is therefore:-
This mistake was induced by Southend Borough’s council’s actions of placing PCN’s on my car, on the above dates, demanding a sum of £30.00 be paid. The notices purported to be Penalty Charge Notices issued under the Road Traffic Act 1991. These notices however were not Penalty Charge Notices as they did not conform to the requirements of the regulations in that they did not specify a date of issue. Since the notices are invalid, they are a nullity void ab ignitio with no legal force and the demand for payment made by the Council on the notice is invalid. At the time I was not aware of this and was induced by their purported official character to make the payment to the Council for which I am now seeking restitution.
I now have the benefit of the ruling by Mr. Justice Jackson of 2nd August 2006 in Barnet v Parking Adjudicator(2006) EWHC 2357(Admin) which now provides a definitive ruling on the requirements of a penalty charge notice and the effects of a notice which fails to conform to the regulations. At Para.36 he states, ‘It seems to me that section 66 requires two dates to be stated on a PCN. These are the date of the contravention and the date of the notice and at para.41, ‘The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise.
Yours sincerely,
HH
Cc Southend Borough Council
The judge just referred to Judge Jackson's ruling. He said that he thought it quite straightforward - he said a 'Mistake of Fact'. And referred to the
Statute
of Limitations up to 6 Years. The
council said that they had employed a barrister, to say that the
county court wasn't the right forum,and that he needed an hour
and a half. Details of this case can only be obtained at level 2 bundle.
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advising London Councils to NOT enforce non compliant PCNs.
PAGE in the case of Barnet –v- The Parking AdjudicatorItem No:20Report by:Nick Lester Job title:Director ALG TEPDate:14 September 2006 Contact Officer:Nick Lester http://www.londoncouncils.gov.uk/doc.asp?doc=18145&cat=2377 Telephone:020 7934 9905Email:Nick.lester@alg.gov.uk Summary:This is a report for information to update the committee on the position for enforcing authorities following the High Court Judgement in the judicial review application lodged by the London Borough of Barnet against a Parking Adjudicator’s decision in the case of Moses. That decision found that the PCN was invalid because it failed to specify the date of issue. Recommendations:Members are recommended to ensure that their boroughs have: stopped issuing non-compliant PCNs revised the format of their PCNs to ensure that they do comply with the relevant decisions ****stopped processing any non-compliant PCNs Background
On 2 July 2002, Parking Adjudicator Richard Crabb allowed an appeal against a Wandsworth Penalty Charge Notice (PCN) on the grounds put forward by the appellant: that it was invalid because it failed to include the mandatory details set out in section 66(3) a-f inclusive on the Road Traffic Act 1991. One of the defects was that the PCN showed no date of notice, another that it failed properly to describe the relevant payment periods.
The London Borough of Wandsworth made an application for review of the decision. The review application was considered at an oral hearing by the Chief Parking Adjudicator, Martin Wood; Wandsworth Council was legally represented. Mr Wood’s detailed decision, issued on 28 October 2002, confirmed the decision of the original Adjudicator – that the PCN was invalid.
On 26 July 2002, following the Adjudicator’s original decision in the case of AL’s Bar –v- Wandsworth, the Head of PATAS sent a copy of the decision, together with a copy of the judgement of District Judge Wigfield in the Central London County Court referred to by the Adjudicator to all the London authorities. That letter reminded authorities that, if they submitted computer print outs as PCN evidence to the Adjudicator, they should ensure that the print out was an exact copy of the wording on the PCN and that it did comply with the mandatory requirements. This letter is attached at Appendix 2.
The review decision in the Al’s Bar case of 28 October 2002 was posted on the PATAS web site.
The Al’s Bar review decision was referred to in the Adjudicators annual report of 2002-3 which was submitted to this committee on 24 October 2003, and sent to all London authority Parking Managers. One of the major themes of the report was that enforcement should be recognised as a legal process. The following is an extract from the annual report, dealing with the Al’s Bar decision:
“The mandatory requirements of section 66(3) of the Road Traffic Act 1991 and the effect of non-compliance were the issue in Al’s Bar and Restaurant Ltd v LB Wandsworth. The Adjudicator found that the Penalty Charge Notice in question did not comply in a number of respects and that these rendered the Penalty Charge Notice invalid. He went on to consider whether he should find the Penalty Charge Notice to be a nullity and decided that he should. He considered that the balance was heavily in favour of his doing so. He pointed out that this was 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 of non-compliance with section 66. Yet it seemed that invalid PCNs were still being issued. The drafting of a compliant PCN is, he said, a simple drafting task and it is difficult to understand why these difficulties have arisen and continue to do so. He went on to say: ““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.”
“We would commend these comments to Local Authorities. All these cases seem to be evidence of a lack of understanding of the Authorities legal obligations or insufficient rigour in applying them. We wonder whether Local Authorities take advice from their lawyers in establishing their processes and systems. It would be wise for them to do so. We recommend that all Local Authorities should have in place procedures, including taking appropriate advice, to ensure that their enforcement processes are legally compliant.”
In 2004, PATAS held 2 seminars for local authority parking staff on submitting evidence and applications to the Adjudicators. At both of those seminars, the Chief Parking Adjudicator gave a short presentation on PCN evidence and the mandatory details required on a PCN.
Moses v. London Borough of Barnet
On 18 February 2006, Parking Adjudicator Timothy Thorne considered two appeals at a personal hearing from Mr Moses against PCNs issued by the London Borough of Barnet. Mr Moses was represented at the hearing by Mr Barrie Segal, of ‘appealnow.com’. Representations were made as to the facts of the cases, and on the point that the Barnet PCN was defective because it failed to state the date of notice. Mr Segal referred to a decision by a National Parking Adjudicator (McArthur –v- Bury Metropolitan Council) in support of this argument. The Adjudicator allowed the appeal on the basis of the facts presented and also because he found that the PCN was defective.
The London Borough of Barnet submitted an application for review of that decision, but did not request an oral hearing. Their application was rejected following consideration of the documents submitted by Parking Adjudicator, Mr Austin Wilkinson. Barnet were informed of this decision on 6 March 2006. They then submitted an application to the High Court for Judicial Review of Mr Wilkinson’s decision to reject the review application.
The application for Judicial Review was heard by Mr Justice Jackson on 1 August 2006. His Lordship delivered Judgement orally on 2 August 2006 in which he broadly endorsed the adjudicator’s decision. He refused the application and also refused leave to appeal against his judgement PATAS has requested a transcript from the Court: it will be circulated to authorities and posted on the PATAS web site as soon as it is received. A note of the judgement was taken by PATAS staff attending court and is attached at Appendix 1.
Following the original decision by the adjudicator, on 27 March 2006 ALG TEP officers held a seminar for authority Parking Managers to draw to their attention the issues raised by the Moses decision and Barnet’s judicial review application and to urge them to ensure that their PCNs complied with statutory requirements, as set out in the Al’s Bar decision.
On 3 May 2006, the Director of ALG TEP wrote to all Parking Managers urging those that had not done so to review their PCNs in the light of the Al’s Bar decision. That letter also pointed out that the model PCN shown in the draft revised Code of Practice, issued to boroughs in late 2005, could be used as a basis for reviewing PCN formats. A copy of that letter is attached at Appendix 3.
On 3 August 2006, there was an ALG TEP seminar for borough Parking Managers. ALG TEP’s director gave an urgent update on the note of the High Court judgement. Boroughs were advised that they should not pursue any non-compliant PCNs.
On 9 August 2006, the Director of ALG TEP again wrote to all Parking Managers in the light of Mr Justice Jackson’s judgement delivered in the High Court. He attached a copy note of the judgement. That letter (copy attached at Appendix 4) reiterated that boroughs should not pursue non-compliant PCNs. It also suggested that enforcement might need to be suspended pending the issue of compliant PCNS.
Financial Implications
While this case has few financial implications for the ALG, there may be significant financial implications for boroughs with open non-compliant PCNs.
Legal Implications
These are covered in this report
Equalities Implications
There are no specific equalities implications from this report
Conclusions
It is clear that the need for PCNs and all other enforcement notices to comply with the legal requirements has been highlighted to all authorities.. It is imperative that authorities ensure that all their notices comply with requirements without delay. Members are, therefore, recommended to ensure that their boroughs have: stopped issuing non-compliant PCNs revised the format of their PCNs to ensure that they do comply with the relevant decisions stopped processing any non-compliant PCNs APPENDIX ONE
BARNET v THE PARKING ADJUDICATOR JUDGEMENT 01 AUGUST 2006
INTRODUCTION Mr Justice Jackson set out the requirements of a Penalty Charge Notice, as defined in S66(3) of the Road Traffic Act 1991, and in the extension of decriminalised enforcement by the LLA Act 2000 to include service of PCNs by post.
THE FACTS Mr Justice Jackson went through the wordings of the PCNs at issue in detail. He pointed out that all the parties had agreed that, in the case of the second PCN, the motorist (Mr Moses) had driven away before the PCN could be issued.
In both cases, the motorist made representations to Barnet, which were rejected. He then appealed to the Parking Adjudicator. The Adjudicator allowed the appeals against both PCNs, on the facts of each case and because he found that the wording of the PCNs (failure to specify a date of notice) made them invalid.
Barnet accepted the direction on both decisions, but applied for review on the grounds that the Adjudicator had erred in his interpretation of the law and that the PCNs were valid.
Barnet did not request an oral hearing of the review application, and did not submit further evidence. The application was dismissed by another Adjudicator, who drew on an earlier decision (Al’s Bar v. Wandsworth) in stating that the wording of a PCN needed to show substantial compliance with the statutory requirements. He emphasised the need for certainty.
PRESENT PROCEEDINGS Barnet claim that their PCNS were ‘substantially compliant’. They said that the way time limits were described on the Notice effectively added an extra day to the statutory requirement, but that this did not matter as it did not cause prejudice to the motorist.
Mr Justice Jackson noted the ‘helpful background’ set out in the Chief Adjudicator’s acknowledgement of service and noted that Barnet’s new PCN does comply with the statutory requirements.
DATE OF NOTICE The judge referred back to the RTA ’91 requirements of s.66(3) and confirmed that the date of notice must be on the charge, otherwise the statutory purpose of sections 66((3) c-e is thwarted.
He went on to explain that the date of contravention and the date of notice are usually the same, but not always because of the question of postal issue and if a contravention was observed just before midnight, but the PCN issued just after.
He also indicated that the date of notice had to appear on the main body of the ticket rather than just in the tear-off payment slip. To illustrate this, he mentioned in detail the example contained in the Al’s Bar decision of a motorist returning the slip with payment, and then wishing to dispute the Council’s refusal to accept a discounted payment.
Mr Justice Jackson mentioned that the requirement of the two dates, (contravention and notice), had been mentioned by Adjudicators on more than one occasion. He emphasised that the statutory requirement of the form of the PCN were simple and clear – compliance was not difficult and a specimen form had been available for more than 10 years. Enforcing authorities therefore had no excuses for non-compliance.
The Barnet PCN showed the date of the contravention, but not of the notice, therefore was not substantially compliant.
Mr Justice Jackson concluded this section of his judgement by stating that the question of prejudice did not arise because the statutory conditions of the notice were not met, therefore financial liability did not arise.
EFFECT OF EXTRA DAY The judge stated that, in the light of his decision, there was no need to pass judgement on the ‘effect of the extra day’ in the wording of Barnet’s PCN. He stated that it would be necessary to consider further evidence to discover whether, in the case of Barnet enforcement procedures, a prejudice did occur, but that this was not necessary as he had already found that the PCNs were non-compliant.
CONCLUSION Barnet’s application for judicial review was dismissed. Leave to appeal against the judgement was refused.
APPENDIX TWO
(Sent by e-mail to all Parking Managers)
<AppOff> <Parking_Address>
26 July 2002
Dear <Dear> PCN Evidence Further to my letters sent to you in September-November 2000 regarding PCN evidence, the Chief Adjudicator has asked me to bring the attached decision to your attention, as it may have a significant impact. Following that decision is a copy of the Judgement of District Judge Wigfield in the Central London County Court in the case of Anthony Sutton –v- The Mayor and Burgesses of the London Borough of Camden. Please see particularly pages 19 to 28. If you submit computer printouts as PCN evidence you might like to take this opportunity to check that each printout is in fact an exact copy of the wording on your PCN and does comply with the requirements. Please ensure that this information is passed on to staff in your appeals section. It would be helpful if a member of your appeals staff could notify us of their e-mail address if they require us to copy future communications to them. Yours sincerely
Charlotte Axelson Head of the Parking and Traffic Appeals Service
encs
APPENDIX THREE: Nick Lester’s letter of 3 May 2006
APPENDIX FOUR: Nick Lester’s letter of 9 August 2006
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Parking Adjudicators’ Annual Report 2005/2006
Page Date:17 October 2006Contact Officer:Martin WoodTelephone:020 7747 4850Email:Martin.Wood@alg.gov.uk Summary:A joint annual report by the Parking Adjudicators for the year 2005/2006. Recommendations:That Members receive the report Financial Implications for ALGN one Is the report ‘open’ to the public?Yes In accordance with S73(17) of the Road Traffic Act 1991, the Parking Adjudicators have pleasure in presenting to the Committee their Annual Report for the year 2005/2006 which is attached. Page 5 of 33
House of Commons Transport Committee Enquiry into Parking Policy and Enforcement
In parallel with the Department for Transport Review, the House of Commons Transport Committee initiated, in August 2005, an enquiry into the current effectiveness of parking provision and enforcement policy. The Chief Parking Adjudicators for both London and England and Wales were amongst the witnesses who gave evidence to the Committee. Members of the Committee also visited the Hearing Centre where they heard presentations from the Chief Parking Adjudicator and Nick Lester of the Association of London Government.
In their report, published in June 2006, the Committee strongly supported the principle of civil enforcement. They said that transferring responsibility for parking enforcement from the police to local government had succeeded in raising the levels of enforcement and compliance and that to retain two parallel parking systems, criminal and civil, was irrational. It was high time, they said, to move to a single country-wide system of civil parking enforcement.
However, they considered that, despite its success, serious flaws remained in the civil system, and concluded that in addition to the main task of introducing a unified system, the following action was required:
Clear performance standards in applying parking restrictions must be established It must be made clearer to drivers what regulations are in force and how compliance is to be achieved Appropriate recruitment, remuneration and training is needed to ensure a professional parking service throughout the country The process for challenging penalty charge notices must be made much more transparent The impact of the parking adjudication service must be increased and its profile heightened Scrutiny of local authority parking departments is woefully inadequate and needs to be strengthened Local authorities must develop parking strategies which meet local objectives fully, focusing particularly on congestion, road safety and accessibility.
They said that detailed, not generalised, guidance from the Department was necessary to address the key shortcomings of the system. Using this guidance as a basis, they expected the Department vigorously to encourage improved standards in all local authorities.
This report is timely, given the moves to implement the Traffic Management Act. Clearly everyone involved in civil parking enforcement needs to take on board the messages from this report in planning for the future, both in terms of the preparation of the regulations and guidance and of the day to day enforcement operation.
In terms of the raising of the profile of the adjudication service, whilst the Notice to Owner is required to inform the recipient of the ultimate right of appeal to a Parking Adjudicator, the Penalty Charge Notice, the first document in the enforcement process, is not required to do so. It seems to us that it would be appropriate that it should.
Pages 10 & 11 of 33 Validity of Penalty Charge Notices
R (Barnet) v Parking Adjudicator
Mr Moses appealed against two Penalty Charge Notices issued by Barnet Council. The adjudicator allowed both appeals on the facts. However, he also held in each case that the Penalty Charge Notice did not comply with the requirements as to form prescribed by section 66(3) of the Road Traffic Act 1991; in particular, they did not specify the date of the notice. In doing so, he followed the decision of a Parking Adjudicator of the National Parking Adjudication Service in McArthur v Bury (NPAS Case No. BC 188), itself following the decision in Al’s Bar & Restaurant v Wandsworth (PATAS Case No. 2020106430). Barnet Council applied under regulation 11 of the Road Traffic (Parking Adjudicators) (London) Regulations 1993 for a review of those decisions, contesting the decision on the compliance issue but not the decisions on the facts. The reviewing adjudicator upheld the decisions of the first adjudicator and rejected the applications for review. Barnet then applied to the High Court for judicial review of the decisions of the reviewing adjudicator. It sought a declaration that the Penalty Charge Notices complied wholly or substantially with the requirements of section 66(3).
On 2 August 2006 Mr Justice Jackson dismissed the claim. In upholding the decisions of the reviewing adjudicator, he held:
that on its proper construction or by necessary implication, section 66(3) requires a Penalty Charge Notice to state the date of the notice; that if a Penalty Charge Notice does not do so, it is invalid and unenforceable; that prejudice to the motorist is irrelevant; that the date of the contravention included within the statement of the reasons why the parking attendant believed a penalty charge to be payable does not satisfy the requirement to state the date of the notice.
He cited with approval the reasoning of the adjudicators in the Al’s Bar and McArthur cases.
Procedural Compliance
The Barnet case illustrates the critical importance of local authorities carrying out enforcement in strict compliance with the procedural requirements of the statutory scheme. This is an issue that has caused the Adjudicators concern for some time and to which we have drawn attention before in our annual reports. Yet we continue to see cases where local authorities have failed to comply with the requirements.
The Barnet case concerned the issue of the required content of a Penalty Charge Notice. But it should be understood that local authorities need to ensure that the notices they issue at all stages of the process are compliant as to form.
Compliance also includes complying with the prescribed time scales. In this connection, it is apparent that some local authorities have still not grasped the distinction between the date of despatch of a document and the date of its service. A document is not served on the date it is posted. Section 7 of the Interpretation Act 1978 provides that service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. So where the next stage of the enforcement process is timed from the service of a document, local authorities must build into their administrative processes sufficient time to allow for service to be effected. For example, the periods after which a Charge Certificate may be served under paragraph 6(2) of Schedule 6 to the Road Traffic Act 1991 are calculated from service, not despatch. We are aware of cases where a Charge Certificate has been despatched 28 days after the date of posting of a Notice to Owner. This is serious, as the local authority is purporting to increase the penalty by 50% several days before it is empowered to do so.
It is to be hoped that the Barnet case will bring home to all local authorities the consequences of failing to ensure that their administrative procedures comply in every respect with the statutory scheme. Page 24 of 33 Thornburn v Camden (PATAS Case no. 205027945A)
The Appellant turned right out of Buckley Road into a bus lane on Kilburn High Road. The issue was whether the signage was adequate. The advance warning sign in Buckley Road was parallel to the kerb, not facing the traffic. It therefore could not be read by motorists approaching the junction with Kilburn High Road.
In its Notice of Rejection, the local authority said "the signs in Buckley Road are for information purposes and it is the main sign on the bus lane itself which provides the main notification".
The Adjudicator said this statement was misconceived. All the signs were for information; none was different from another in that respect. The implication that the signs in Buckley Road were less important than those in Kilburn High Road and that any deficiency in them did not matter was wrong. The signage was manifestly inadequate. Appeal allowed.
Page 30 of 33
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Miah v Westminster (PATAS Case no. 2050339777)
The Appellant produced a Charge Certificate that was issued to
him on 10 October. At that time this appeal was pending. The
Charge Certificate informed the Appellant that the penalty was
increased to ?150, threatened enforcement action through the
courts if it was not paid, and stated that it was then too late
to challenge the issue of the Penalty Charge Notice. Page 32 of 33
Proud v Westminster (PATAS Case no. 2050188081)
The parking attendant noted "I just dropped the PCN on the windshield as she was driving". The Adjudicator said that the Penalty Charge Notice must be fixed to the vehicle. Merely dropping it on to the windshield did not constitute fixing. The Penalty Charge Notice was not properly served. Appeal allowed.
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Hyams V Camden – Patas Ruling Page 1
Page 2
page 3
The full and more thorough ruling is at addenda 1. This my own...COMMENT: The PATAS ruling is clear, and thorough, it takes up and re-enforces the J. Jackson Ruling, making the PCN formulation for CAMDEN UNENFORCEABLE for non compliance with the RTA 1991 section 66. There is no way that a reference on the back of a PCN to a date on the front constitutes two dates, the more so as those two dates can be different. Comment on this, for semantic and logical accuracy; The others shall be for a determination at the court. However, what can be plainer than “a PCN requires two dates, (not one date in two senses, from which no different date can be extrapolated)” and the word must, in section 66 of the RTA. It is neither logically nor empirically possible. Sense and reference, Frege, the classic example. Also 'On denoting' Bertrand Russell. The evening star and the morning star, (two different days, coincidentally) refer to the SAME planet VENUS. It is not possible to create two planets from the construction of two ways of looking at an object. Otherwise, The Queen, The Husband of Prince Philip, and the Mother of Prince Charles, and the Monarch would give Britain four sovereigns or persons. The council, PATAS and the courts have a Duty not to be irrational. To do so, strikes at the roots of the theory of knowledge and how it is obtained. As in the three rulings below. The Defendant is satisfied the non-compliance is proven and corroborated.
Duty not to be irrational. Bromley and London Borough Council v Greater London Council (1983) Lord Diplock "Decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached".
Council of Civil Service Unions v Minister for the Civil Service (1985) Lord Diplock "By irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness ............. it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
R v Housing Benefit Review Board of London Borough of Sutton ex parte Keegan (1995) Conclusion "was arrived at in the teeth of the evidence and was accordingly Wednesbury unreasonable"
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Page No 1
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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; (c) that the penalty charge must be paid before the end of the period of 28 days beginning 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; (c) that the penalty charge must be paid before the end of the period of 28 days beginning 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
Page No 7
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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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Page No 1
CODE OF CONDUCT
Adopted by Council 29 th March,2005.
Page No 2
Camden Council - Code of Conduct Page 2
TABLE OF CONTENTS 1 Introductions 3 2 Definitions 4 3 Purpose of the code of conduct 5 4 Key Principles 7 5 General Conduct Obligations 8 6 Conflicts of Interest 10 7 Personal Benefit 13 8 Relationshipbetween Council Officials 15 9 Access to information and council resources 17 10 Reporting breaches, complaint handling procedures & sanctions 20 11 Councillor misbehaviour 22
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Page No 3
Camden Council - Code of Conduct Page 3
1 Introduction The Local Government Act 1993 requir es every council to adopt a code of conduct that incorporates the provisions of The Model Code Of Conduct for Local Councils in NSW. Councillors, members of staff of council and delegates of the council must comply with the applicable provisions of council’s code of conduct. It is the personal responsibilit y of council officials to comply with the standards in the code and regularly review their personal circumstances with this in mind. Council contractors and volunteers will also be required to observe the relevant provisions of council’s code of conduct. Failure by a councillor to comply with an applicable requirement of council’s code of conduct constitutes misbehaviour. Failure by a member of staff to comply with council’s code of conduct may give rise to disciplinary action.
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Page No 4
Camden Council - Code of Conduct Page 4
2 Definitions In the model code of conduct the following definitions apply: Council official Includes councillors, members of staff of council and delegates of council. Delegates of council A delegate of council is a person or body to whom a function of council is delegated Designated person See the definition in section 441 of the Local Government Act 1993 Act of disorder See the definition in clause 29 of the Local Government (Meetings) regulation 1999 The Act The Local Government Act 1993 The term “you” used in the model code of conduct refers to council officials. References to sections in the model code of conduct are references to sections in the Local Government Act 1993.
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Camden Council - Code of Conduct Page 5
3 Purpose of the code of conduct The Model Code of Conduct for Local Councils in NSW sets the minimum requirements of behaviour for council officials in carrying out their function. The model code is prescribed by regulation. The model code of conduct has been developed to assist council officials to: Understand the standards of conduct that are expected of them Enable them to fulfil their statutory duty to act honestly and exercise a reasonable degree of care and diligence (section 439) Act in a way that enhances public confidence in the integrity of local government.
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Camden Council - Code of Conduct Page 6
4 Key Principles The code of conduct applies equally to formal and informal dealings between councillors, staff and others. The general principles upon which codes must be based are: 4.1 Selflessness Council officials have a duty to make decisions solely in the public interest. Officials must not act in order to gain financial or other benefits for themselves, their family or friends. This means making decisions because they benefit the public, not because they benefit the decision maker. 4.2 Integrity Council officials must not place themselves under any financial or other obligation to any individual or organisation that might reasonably be thought to influence them in the performance of their duties. 4. 3 Objectivity Council officials must make decisions solely on merit and in accordance with their statutory obligations when carrying out public business. This includes the making of appointments, awarding of contracts or recommending individuals for rewards or benefits. This means fairness to all; impartial assessment; merit selection in Recruitment and in purchase and sale of council’s resources; considering only Relevant matters. 4.4 Accountability Council officials are accountable to the public for their decisions and actions and must consider issues on their merits, taking into account the views of others. This means recording reasons for decisions; submitting to scrutiny; keeping proper records; establishing audit trails. 4.5 Openness Council officials have a duty to be as open as possible about their decisions and
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Camden Council - Code of Conduct Page 7
actions, giving reasons for decisions and restricting information only when the wider public interest clearly demands. This means giving and revealing reasons for decisions; revealing other avenues available to the client or business; when authorised, offering all information; communicating clearly. 4.6 Honesty Council officials have a duty to act honestly. Officials must declare any private interests relating to they’re public duties and take steps to resolve any conflicts arising in such a way that protects the public interest. This means obeying the law; following the letter and spirit of policies and procedures; observing codes of conduct; fully disclosing actual or potential conflict of interests and exercising any conferred power strictly for the purpose for which the power was conferred. 4.7 Leadership Council officials have a duty to promote and support these principles by leadership and example and to maintain and strengthen the public’s trust and confidence in the integrity of the council. This means promoting public duty to others in the council and outside, by their own ethical behaviour. 4.8 Respect Council officials must treat with respect other council officials and the role they play, treating them with courtesy at all times.
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Camden Council - Code of Conduct Page 8
5 General Conduct Obligations General conduct 5.1 You have an obligation to comply with the provisions of the Local Government Act 1993, the associated regulations and council’s policies. 5.2 You must act lawfully, honestly and exercise a reasonable degree of care and diligence in carrying out your functions under the Local Government Act 1993 or any other Act. (section 439 of the Local Government Act 1993) 5.3 You must respect all community members and other council officials and the role they play, treating them with courtesy at all times. 5.4 Councillors must avoid behaviour that could be deemed to be an act of disorder or misbehaviour. This includes conduct that: Contravenes the Local Government Act 1993 or associated regulations Is detrimental to the pursuit of the charter of a Council; Is improper or unethical; Is an abuse of power or otherwise amounts to misconduct; Causes, comprises or involves intimidation, harassment or verbal abuse; C |
