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Al's
V Bar – Ruling
Title: London Borough of Wandsworth
v Al's Bar & Restaurant Ltd
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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,
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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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Page No 9
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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Page No 12
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.
|
It
all started when an industrial park sprang up around the
bungalow he was building by hand just outside
Llandovery.
