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London Borough of Wandsworth V Al’s Bar and Restaurant Case Number: 2020106430 Penalty Charge Notice: wa04516186 Review Decision dated 28 October 2002


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London Borough of Wandsworth v Al’s Bar and Restaurant

Case Number: 2020106430 Penalty Charge Notice: WA04516186

Review Decision dated 28 October 2002
This is an application by the Borough of Wandsworth ('the Council') for review of the decision of the Parking Adjudicator, Richard Crabb, on 2 July 2002 when he allowed the appeal of Al's Bar & Restaurant Ltd ('the Appellant') and directed the Council to cancel the Penalty Charge Notice ('PCN') and the Notice to Owner ('NTO'). I heard the application on 10 October 2002. Mr Pitt-Payne of Counsel represented the Council and Mr Sutton the Appellant.

The facts as to the issue of the PCN are not in dispute. The issue between the parties is the validity of the PCN. The Appellant says that the PCN is invalid and unenforceable because it does not comply with the requirements as to content prescribed by section 66 (3) of the Road Traffic Act 1991.


It provides as follows:

    '(3) penalty charge notice must state-


         grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle;


amount of the penalty charge which is payable;


the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;


if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;


if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle;


address to which payment of the penalty charge must be sent.'

At the hearing of the original appeal, which the Council did not attend, Mr Crabb found, in essence, that the PCN did not comply with the requirements of paragraphs (c), (d) and (e) and that this rendered it invalid. In doing so, he adopted relevant parts of the judgment of District Judge Wigfield in Sutton v London Borough of Camden (In the Central London County Court Case No: BT106545), a case heard earlier this year (the exact date is unclear). This was a claim under the Torts (Interference with Goods) Act 1977 relating to the clamping of a vehicle. It raised similar issues about the validity of a PCN issued by Camden and the District Judge found against Camden.

On 19 August 2002 the Council applied by fax for a review of Mr Crabb's decision, under paragraph 11(1)(e) of the Road Traffic (Parking Adjudicators) (London) Regulations 1993.


Regulation 11, as amended, provides, so far as relevant, as follows.

    '11. (1) The adjudicator shall have power on the application of a party, to review and revoke or vary any decision to dismiss or allow an appeal or any decision as to costs on the grounds (in each case) that -

(e) the interests of justice require such a review.
-------------------------
(3) An application under this regulation shall be made to the proper officer within 14 days after the date on which the decision was sent to the parties, and must state the grounds in full.

(4) The parties shall have the opportunity to be heard on any application for review under this regulation; and if, having reviewed the decision, the adjudicator directs the decision to be set aside, he shall substitute such decision as he thinks fit or order a re-determination by either the same or a different adjudicator.


(5)....................'


The first issue I have to consider is whether there should be a review of the decision.




Should there be a review?


The application was made outside the 14 days prescribed by regulation 11(3). However, regulation 14(1)(a) empowers me to extend that time notwithstanding that it may have expired.

The Council contended that the interests of justice required a review because:


1)    the decision was of general importance to the Council, and perhaps to other Local Authorities, since it held that the Council's current form of PCN did not comply with the legislation.


2)    the decision was reached following an oral hearing in which the Council did not take part.


3)    there were important arguments and authorities that were not taken into account by Mr Crabb.


4)    there was no prejudice to the Appellant as the Council would not in any event enforce the particular PCN.


Mr Pitt-Payne told me that the Council was initially not minded to apply for review but later decided to do so, given the importance of the issues. He said that the decision could affect a large number of PCNs and the issues needed resolving quickly. Whilst the Council would need to consider re-drafting its PCN whatever the outcome, this left open the question of whether past PCNs were valid. If the issue were left, there could be a collateral challenge in another forum, as was the case in Sutton v Camden.


Mr Sutton argued that the Council had no arguable case; that Mr Crabb's decision disclosed no error in law. He also pointed out that the Council had had the opportunity to attend the original hearing; Mr Crabb had adjourned the hearing to make them aware of the Appellant's detailed submissions. Mr Pitt-Payne told me that the adjournment letter to the Council had apparently gone astray and it was only when the Council received a telephone call from the Parking and Traffic Appeals Service on the day of the hearing that they became aware of the position. By then it was not possible to find someone to attend.


The crucial point in my view is that the case does raise issues of general importance concerning the decriminalised enforcement of traffic controls. Clarification of these issues would be of benefit to both Local Authorities and the motoring public. It is therefore right that it should be decided after full arguments from both parties, an advantage Mr Crabb did not have.


I accordingly decided to proceed with the review, notwithstanding that the application had been made late.

I now turn to consider the substantive issues. These are two. First, does the PCN comply with section 66(3)? Secondly, if not, what is the effect of non-compliance with section 66(3)? The second only arises, of course, if the answer to the first is that it does not.




Does the PCN comply with section 66(3)?


There is no dispute that the PCN complies with paragraphs (a), (b) and (f). The Appellant contends it does not comply with (c), (d) and (e).

Before considering each of these in turn, there is a preliminary point I must deal with. This is: must the PCN follow the wording of section 66 or may it use different words provided that they mean the same? To put it another way, must there be literal compliance or is substantial compliance sufficient?


There is no doubt in my mind that substantial compliance is sufficient. But this should not be thought of as encouraging enthusiastic departure from the statutory language. Disciplined drafting dictates that where a statute requires a document to contain particular statements, the starting point for drafting a compliant document ought always (to) be that the statutory language should be carried across to the document unless there are very good reasons for doing otherwise. This is for the very obvious reason that if the statutory language is adopted, the opportunities for challenging the document for failure to comply with the statutory requirements, as in this case, are eliminated.


Local Authorities, like other organisations, are encouraged to couch their communications in plain English, and of course this is to be applauded. But the statutory requirements take precedence over this laudable aim, and Local Authorities must be aware that the language they use, however plain, must bear the same meaning in substance as that prescribed by the statute.

I now turn to consider compliance with each of the paragraphs in issue.




Section 66(3)(c): that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice

The PCN says this:


    'You are therefore required to pay the sum of £80 within 28 days.'


This does not follow the wording of the Act and therefore does not literally comply. Does it comply in substance? To decide, I must examine the elements of paragraph (c).


First, 'that the penalty charge must be paid'. The reference to 'the sum of £80' in the above sentence from the PCN is in fact the only place in which the full amount of the penalty charge is stated. It is referred to as a 'sum' rather than being specifically described as a penalty charge. In fact, rather than being simply the statement required by paragraph (c), the sentence attempts to cover both (b) and (c). Whilst compliance with (b) was not disputed by the Appellant, it seems to me that merely to describe the £80 as 'the sum' is at best unsatisfactory and at worst non-compliance.


The sentence that follows does refer to 'The charge' (not penalty charge) being reduced, but describing the full sum as a penalty charge when it is first referred to would avoid any doubts. Indeed, curiously the expression penalty charge appears nowhere in the PCN except as part of the term 'Penalty Charge Notice'. It appears that the draftsman of the PCN may not have appreciated the distinction between the penalty charge, which is the penalty payable, and the Penalty Charge Notice, which gives notice of the penalty charge payable. I say this because on the back the Notice (it) says 'If payment of this Penalty Charge Notice is received....'

Reverting to paragraph (c), Mr Pitt-Payne contended that 'You are required to pay' means in substance the same as 'This sum must be paid'. I accept that 'are required' means in substance the same as 'must'. Having said that, I cannot see that it is an improvement. What could be plainer than the simple word 'must'?


But there is another point on this element. Under section 66(1) the parking attendant effects service of the Penalty Charge Notice by either fixing it to the vehicle or giving it to 'the person appearing to him to be in charge of the vehicle'. Under section 66(2) the person legally liable for payment of a penalty charge is the owner. It may or may not be that the person in charge of the vehicle is the owner. Therefore, the person who receives the Penalty Charge Notice may or may not be the person legally liable to pay the penalty charge. It is no doubt for this reason that the draftsman chose the impersonal 'that the penalty charge must be paid'. For the notice to say 'You are required to pay' will be an inaccurate statement of the legal position in a great many cases.


In those circumstances, it cannot to my mind be said that the formulation in the PCN constitutes substantial compliance.

Turning to the next element, the prescribed period for payment is 'before the end of the period of 28 days beginning with the date of the notice'. The PCN says 'within 28 days'.


The general rule is that where a period is fixed for the taking of some step, the day of the act or event from which the period runs is excluded in calculating the period. Mr Pitt-Payne conceded that 'within 28 days' fell to be construed in accordance with this rule as excluding the date on which the PCN was issued. The wording does not literally comply with paragraph (c), but does it substantially comply?


Mr Pitt-Payne referred me to Trow v Ind Coope (West Midlands) Ltd [1967] 2 All E.R. 900, which he conceded was against him. This concerned the interpretation of the Rules of the Supreme Court Order 6 rule 8(1), which provided that a writ was valid 'for twelve months beginning with the date of its issue'. The Court of Appeal held that 'beginning with the date' included the day on which the writ was issued and ousted the general rule.


Mr Pitt-Payne urged me to construe this case narrowly; to treat it as authority for the meaning of 'beginning with' only in the context with which the Court was concerned and as not applying to a penal or quasi-penal administrative penalty. This is a most unappealing proposition. If the term's meaning is dependent on context, it would mean that in every context where the term appeared there would be likely to be uncertainty as to its meaning. I would in any event have decisively rejected it, but in any case it seems to me to be inconsistent with the decision in Trow.


Furthermore, another authority, Hare v Gocher [1962] 2 Q.B. 641, is to the same effect as Trow: In Hare, where the words in question were 'beginning with the commencement of this Act' and 'beginning with the date on which it is passed', Winn J concluded that the phrase 'beginning with' was especially used to avoid equivocation and to exclude the ordinary rule.
In Trow, Harman LJ said 'I see no escape from the conclusion that where the word "with" is used, the first day is included'; and Salmon LJ said that 'Any period of time to be calculated as commencing or beginning with a certain day must include that day.' I emphasise: 'Any period'. This makes clear that this is a matter not of context but of the ordinary meaning of the language.

Mr Pitt-Payne argued that if the draftsman had intended the first day to be included, he could have made that clear by including words such as 'including the day of issue of the notice'. The answer to that is that given that the meaning of the phrase chosen by the draftsman is well established, any such embellishment would have been verbiage.


Mr Pitt-Payne also argued that if the wording of the PCN differed from the language of the statute, the effect was to give an extra day for payment to be made. If there was an error, it was in favour of the person liable to pay; so nobody was prejudiced by the error. This argument might well be relevant to the second substantive question -  the effect of non-compliance -  but it does not support the argument that the PCN is compliant. The Local Authority has no power to extend the statutory period as a matter of law. The fact that it may as a matter of administrative practice allow longer than the prescribed periods (an issue I will return to) is a different point and cannot justify a misstatement of the legal position, which is the purpose of the requirements of section 66(3).


The PCN therefore fails the compliance test in this regard also.


There is a further point on this second element. In order to calculate the period, it is necessary to know 'the date of the notice'. Implicitly, therefore, paragraph (c) requires the notice to bear its date.


The date '20/11/01' appears twice on the PCN. It appears about halfway down where it is stated that the vehicle 'was seen in Lockington Road SW8 at 09:24 on 20/11/01'. That is in fact part of the 'grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle' required by paragraph (a). It appears again on the part of the document described as a 'Payment Slip'. At the top of the document the 'Notice No.' appears. This also appears on the Payment Slip, adjacent to 'Date: 20/11/01'. In contrast to the Payment Slip, the date does not appear adjacent to the notice number at the top.

Mr Pitt-Payne conceded that it might have been clearer if the date had appeared at the top with the notice number. He contended, however, that there was no reasonable ground for uncertainty and that no reasonable person looking at the PCN could be in any doubt about its date.


I asked Mr Pitt-Payne what would happen if I, having received a PCN, tore off the Payment Slip and sent it with my remittance for the penalty charge. If I later wanted to know the date of the notice for some reason - for example, because an issue arose between me and the Local Authority about whether I had paid the reduced penalty within the time allowed -  where would I then find the date of the notice on what I was left with? Mr Pitt-Payne suggested that I might then have to ask the Local Authority for a copy of the Payment Slip.


If that is so, it follows that the date does not appear on what I am left with -  the PCN after detaching the Payment Slip. That seems to me to be the position. It is not sufficient for a date to appear in the paragraph (a) statement of grounds. The date appears there for the purpose of describing the grounds, not as stating the date of the notice.
As to the Payment Slip, it is in my view not part of the PCN at all; it is a separate document that is, for convenience, attached to the PCN. I note that on the Wandsworth NTO, both the number and date appear at the top of the notice and the attached Payment Slip, in contrast to the PCN.

The PCN as drafted would in my view still not be adequate even if the date of the alleged contravention and the date of the notice were always the same. But in any event this is not the case. A PCN may be served by post where enforcement is carried out remotely by camera and where the parking attendant has been prevented by someone from serving a PCN on the street. In such cases, the date of the notice will be different from the date of the alleged contravention.


Again, therefore, the PCN fails the compliance test.




Section 66(3)(d):if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion


The PCN says:

'The charge will be reduced to £40 if payment is received within 14 days'; and


'If payment of the Penalty Charge Notice is received within 14 days of the date of issue (as shown overleaf) the reduced charge will be accepted as settlement.'

I note, in passing that in these sentences the impersonal form is used. But similar issues arise concerning the phrase 'beginning with' and the absence of the date of the notice, and my conclusions are the same.


A further point arose. The second sentence uses the expression 'date of issue' rather than 'date of the notice'. Mr Pitt-Payne submitted there was no difference. I would say that if the date had appeared on the notice and it had there been described as the date of issue, I would have agreed this amounted to substantial compliance. However, I can see no merit in using 'date of issue' rather than 'date of the notice', the phrase in the Act.


If the notice had described the date as 'Date of Notice' or simply 'Date', as on the payment slip, then I suppose there might be scope for confusion if the paragraph (c) and (d) statements used the expression 'date of issue'. There could really be no confusion if the statements said 'date of the notice' even if the date itself were merely described as 'Date'.

There is perhaps an even better way of complying with the requirement to state on the notice the time limits that apply. Many PCNs are nowadays issued by using handheld computers. I would have thought it ought to be a straightforward matter for the handhelds to be programmed to print the relevant dates on the notice automatically. This would avoid the recipient having to work them out and any possibility of misunderstanding. This is an example of where it may be desirable to effect compliance otherwise than by merely following the wording of the statute.



Section 66(3)(e):if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle


The PCN says:

'If no payment is received within 28 days of the date of issue, a Notice to Owner may be sent to the registered keeper of the vehicle requesting payment.'


Again, the relevant period is incorrectly stated.


The second point the Appellant takes on this paragraph is that the PCN says that the NTO may be sent to 'the registered keeper' whereas the Act refers to 'the person appearing to [the London authority] to be the owner of the vehicle'.


Mr Pitt-Payne submitted that there is no difference in substance between the two. He said that the point made in the PCN is that the way in which the Council will determine the identity of the apparent owner is by finding out who is the registered keeper.

I do not accept these submissions. It is not the case that there is no difference in substance between 'the registered keeper' and 'the person appearing to the [London authority] to be the owner'. As I have said above, the Act places liability for penalty charges on the owner. Section 82 provides as follows:




     'S. 82(2) (For) the purposes of this Part of this Act, the owner of a vehicle shall be taken to be the person by whom the vehicle is kept.

((3) In) determining, for the purposes of this Part of this Act, who was the owner of a vehicle at any time, it shall be presumed that the owner was the person in whose name the vehicle was at that time registered under the [1971 c.Vehicles (Excise) Act 1971.'

The scheme of the Act does not therefore place liability on the registered keeper. It places liability on the owner; the owner is to be taken to be the keeper; and there is then merely a presumption that the owner was the registered keeper.


That presumption is rebuttable; under paragraph 2(4) of Schedule 6 to the Act, one of the grounds on which the recipient of a NTO may make representations to contest liability is:

  '(a) (that) the recipient-  


         (never) was the owner of the vehicle in question;


ceased to be its owner before the date on which the alleged contravention occurred; or


its owner after that date'


Paragraph 2 (5) and (6) go on to provide, in substance, that where (a)(ii) or (iii) are relied on, the person making the representations must supply the name and address of the person to whom the vehicle was disposed of or from whom it was acquired, if they have that information. Paragraph 3(2) empowers the Local Authority to serve a further NTO on that person.


The power to serve a NTO is prescribed in paragraph 1 of Schedule 6, which empowers the Local Authority to serve such a notice on 'the person who appears to them to have been the owner of the vehicle when the alleged contravention occurred'; not, it is important to note, on the registered keeper. The power is clearly expressed in these terms because it may or may not be that the registered keeper was the owner at the relevant time; and it is possible that at the point of deciding on whom to serve the notice the Local Authority is in possession of information that the registered keeper was not the owner.


Let me give one example. It may occur that more than one PCN is issued to a vehicle over a period of time. Say two are issued to a vehicle. The Local Authority eventually serves a NTO on the registered keeper in respect of the first. It receives representations from the registered keeper on the basis of which it accepts that he had disposed of the vehicle before the date of the contravention and therefore was not the owner at that time. The Local Authority then comes to consider service of the NTO in respect of the second, later, PCN. It could hardly be that at that point the registered keeper could be 'the person who appears to them to have been the owner of the vehicle when the alleged contravention occurred.'


The draftsman constructed a carefully thought out scheme of liability and chose his words with equal care to reflect it. He chose the more elaborate expression 'the person appearing to the [London authority] to be the owner' rather than 'registered keeper' for the very good reason that to empower the Local Authority to serve the NTO on the registered keeper would not reflect the more complex scheme of liability.


Mr Pitt-Payne submitted that the statement in the PCN was compliant since it describes what generally happens; and that the word 'may' reflected the fact that the notice might be sent to someone else. I do not agree. The requirement in paragraph (e) was clearly deliberately formulated by the draftsman so as to inform the recipient of the Local Authority's power under Paragraph 1 of Schedule 6. That is the requirement; to instead inform the recipient of what generally happens does not fulfil the purpose of the requirement.


Nor does 'may' have the meaning advocated by Mr Pitt-Payne. It is taken from paragraph (e) and the use of that word reflects the fact that the Local Authority has a power, not a duty, to serve a NTO. It has nothing to do with on whom the notice will be served.

So I conclude that in relation to both points taken by the Appellant the PCN is not compliant.


But there seem to me to be two other difficulties with it. First, the PCN says 'If no payment is received....'; the requirement in the Act is to state that 'if the penalty charge is not paid'.


The wording in the PCN could be seen as unclear: does the whole of the penalty charge have to be paid or is a part payment sufficient? Following the plain and carefully chosen words in the Act would avoid any element of ambiguity.

Secondly, the requirement of the Act is to state that a NTO may be served 'by the London authority'. The Act requires the PCN to state by whom the notice may be served. It does not do so.


So it is clear that the PCN fails to comply with the requirements of Section 66(3)(c), (d) and (e) in a number of respects.


Accordingly I must now consider the second substantive question:


What is the effect of non-compliance with section 66(3)?


The requirements of section 66(3) are without doubt mandatory, not directory.
However, it is clear from the authorities that this does not mean that non-compliance automatically renders the PCN a nullity. In London & Clydesdale Estates Ltd v Aberdeen DC [1980] 1 WLR 182, which concerned the absence of a required statement of rights of appeal from a certificate, Lord Hailsham said that whilst the failure to include the information was fatal to the certificate, it was not a nullity; it 'was effective until it was struck down by a competent authority'.
And Lord Fraser of Tullybelton said:

'I have no doubt that the effect of the omission in the case was to make the certificate invalid in the sense that it cannot stand if challenged by the appellants. It is not a complete nullity.'


So this PCN, although defective, remains effective unless I find it to be a nullity. The question is whether I should do so.


This is a matter of discretion. Mr Pitt-Payne referred me to R v Immigration Appeal Tribunal ex p Jeyeanthan (1999) 11 Admin LR 924 CA for the principles he said I should apply.


In that case Lord Woolf MR cited Lord Hailsham in the London & Clydesdale case, where he said:

'When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequence upon himself ........ At the other end of the spectrum the defect.......may be so nugatory or trivial that, if the subject is so misguided as to rely on the faults, the courts will decline to listen to his complaint. But in a very great number of cases, it may be a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary....... The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind'.




The crucial passages from what Lord Woolf himself said are as follows.
'Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases ....... the tribunal ........ has the task of determining what are the consequences of failing to comply........in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances.
.............
It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation.
..............

I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows:


(a)    Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)


(b)    Is the non-compliance capable of being waived, and if so has it, or can it and should it be waived in this particular case? (the discretionary question.) I treat the grant of an extension of time for compliance as a waiver.


(c)    If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (the consequence question.)'

I will apply this approach to the question of the effect of non-compliance with section 66(3).

Mr Pitt-Payne conceded that the discretionary question did not arise in this case. I must accordingly consider the substantial compliance and consequence questions.




The substantial compliance question


I have already found that the PCN did not comply with the requirements of section 66(3). It did however seem to me that there might be a wider aspect to this question in relation in particular to the time limits of 28 and 14 days: whether the Council was able to say that there was compliance with the enforcement scheme prescribed by the Act as a whole, even though looked at in isolation the PCN did not accord with the requirements of section 66(3). This is where the contention that there was no prejudice because the PCN allowed an extra day in relation to the time limits is relevant.
If following service of the NTO the Council then proceeded with further enforcement on the basis of those longer time limits, would that satisfy the substantial compliance test?


In this connection, Mr Pitt-Payne told me that in practice the Council allowed 35 days before serving the NTO. This was at odds with what happened in this case: the PCN was issued on 20 November 2001, the NTO sent on 19 December 2001. It seems - although there was an element of speculation about this - that the latter may have been brought forward because of the approach of the Christmas holiday. Whatever the reason, it is clear that the 35 days is not rigidly adhered to.
And I heard evidence from Ms Coral Kirkwood, a Senior Parking Officer from the Council, that she understood the 28-day statutory period as including the day of the contravention, so that in calculating when the Council was legally entitled to serve the NTO she would include it -  at odds with the PCN.
Mr Pitt-Payne put it to me that if a PCN were served immediately on expiry of the statutory time limit the recipient would be entitled to take the point that it had been served too soon given the time limit stated on the PCN. But this is approaching the issue back to front: it is the statement on the PCN that is non-compliant; the service of the NTO would comply with the statutory power.

As to the 14 days for payment of the reduced penalty, Mr Pitt-Payne told me that in practice the Council allows 17 days. However, my view of this was that it was no more than an administrative convenience to avoid disputes about whether payment had been made within time.


Mr Pitt-Payne was unable to provide a definitive answer to the question as to the period up to the end of which the Council regarded itself as obliged in law to accept the reduced penalty. The evidence did not satisfy me that there was no possibility of the Council declining to accept payments received outside the statutory period but within the longer period given on the PCN, perhaps in an individual case or because of a general change of practice.

If there were to be any question of my concluding that there was substantial compliance with the general scheme of time limits in the wider sense, I would have had to have had clear evidence that the Council applied the longer time limits described on the PCN on the basis of an understanding that those were the statutory limits; otherwise there would be the danger of the rights of the public being affected by mere changes of practice. I did not have such evidence; indeed, Ms Kirkwood's evidence was to the contrary. In any event, even if there were substantial compliance in this wider sense with the time limits, there could be no question of there being such compliance with other aspects. In those circumstances, it is not necessary for me to come to a firm conclusion on this point.




The consequence question

I should first say that I do not regard this case as falling at either of the extremes of Lord Hailsham's spectrum of possibilities but within the majority falling in between. What I have to do is exercise the discretion whether to find the PCN in issue in this case a nullity.


Mr Pitt-Payne contended that I should not do so because the Appellant had not alleged any actual confusion or prejudice, even if a PCN in this form might be found a nullity in another case. That is certainly one consideration I must take into account, but it is in my view by no means the only one.


I bear in mind that the Council did not apply for review because the issue of liability for this individual PCN was itself of great importance. It did so because, it said, of the important general issues and implications, which could affect other Local Authorities as well as the Council. It was for that reason I considered it appropriate to conduct a review and granted the application. It would therefore be wrong to confine my consideration of the consequence question to the PCN the subject of this case; I must consider the question in the widest context. This means considering it in the overall context of parking control in London.


In considering this question I take account of this passage from Lord Hailsham's judgment in London & Clydesdale:




  'I do not think we are entitled to play fast and loose with statutory requirements designed to inform the subject as to his legal rights against an authority possessed of compulsory powers...........I do not think that prescriptions for the benefit of the subject are to be so disregarded.'

And in the highly respected textbook Wade & Forsyth: Administrative Law (8th Edn.) page 230 it is stated as follows:


'In notices affecting private rights, particularly where the effect is penal, scrupulous observance of statutory conditions is normally required....An enforcement notice is void if it fails to state, as it should, the time allowed for compliance.' (citing Burgess v Jarvis [1952] 2 Q.B. 41).


Mr Pitt-Payne accepted that the fact that the Council's powers in this case are penal was a factor I should take into account. The requirements of section 66(3) are plainly designed to inform the subject as to his legal rights in the context of the penal scheme. These considerations weigh in favour of finding the PCN a nullity, but they are not conclusive on their own.


I also consider the nature and extent of parking control as an activity. It is a necessary one of considerable importance that affects the daily lives of millions of motorists. PCNs are issued in their thousands every day; over 4 million every year. Only about 1 per cent gets as far as an appeal before a Parking Adjudicator. In relation to such a routine, everyday, prolific activity it is highly undesirable for non-compliant PCNs to be served in large numbers.


My decision should in my view provide every encouragement to Local Authorities to ensure that the PCNs they serve are compliant with the statutory requirements as to their content.
This is not the first occasion this issue has come before a Parking Adjudicator. In the case of Moulder v Sutton LBC (PATAS Case No. 1940113243 24 May 1995) an Adjudicator found the PCN in that case to be a nullity because it omitted the statement required by section 66(3)(e). Yet it seems that invalid PCNs are still being issued, as both this case and Sutton v London Borough of Camden show. The drafting of a compliant PCN is a simple drafting task and it is difficult to understand why these difficulties have arisen and continue to do so.

These sentiments apply to every stage of the enforcement process, not just the issue of a valid PCN. The Parking Adjudicators have had cause in their annual report on more than one occasion to comment on procedural irregularities that have come to their attention in appeals.


The motoring public deserves nothing less than that the public authorities exercising penal powers understand the importance of their complying with the conditions attached to their powers and are scrupulous about having in place administrative processes that do so. It is imperative that the public can have confidence in the fairness and propriety of the enforcement of parking controls.

It is also relevant that the penalties for parking contraventions are relatively low. It is very undesirable in those circumstances for the imposition of those penalties to be attended by uncertainties about its legality for procedural reasons. What is required is simplicity, clarity and certainty. That aim is not assisted by a less than rigorous approach to procedures by Local Authorities.


I also take into account the fact that the PCN in this case was non-compliant in a considerable number of respects. This is not a case of a single, minor error. I am afraid that the Council has played rather fast and loose with the carefully drafted requirements of the Act, no doubt inadvertently, but it is none the less serious for that.


All these factors taken together in my view point strongly towards the interests of parking control being best served by my finding the PCN to be a nullity irrespective of whether the non-compliance caused prejudice in this case.


But what factors are there pointing the other way? Apart from the non-prejudice point in this particular case, Mr Pitt-Payne put forward two arguments. First, that there was no danger of prejudice or confusion on any likely facts. That is a matter of speculation. In any event, it is not acceptable for the Council to say, in effect, that it may not have complied with the statutory requirements but it really does not matter. The statutory requirements are as they are for very good reasons, they are mandatory and the Council should comply with them.


In any event, it is in my view incorrect to suggest that there are no foreseeable circumstances in which the errors could cause prejudice. It is perfectly possible to envisage such cases: I have mentioned for one the possibility of confusion over the period applicable to the right to pay the reduced penalty.


Secondly, he argued that if I find this PCN a nullity without finding prejudice, that would put in jeopardy many other PCNs. This may be so, but I do not consider that it tips the scales in favour of not finding the PCN a nullity. The effect would be historical and time limited. Historical because, clearly it would affect only past invalid PCNs -  provided that the Council in future issues valid ones. Time limited because, as I have said, it would not mean all past invalid PCNs becoming nullities. It would be necessary for a challenge to the validity of each PCN to be brought before a competent judicial forum, and there are time limits for doing so. The issue would therefore only affect PCNs issued relatively recently.

Nor would finding this PCN a nullity prejudicially affect the Council's ability to carry out the enforcement of future valid PCNs. The fact that some motorists may now escape liability for past contraventions does not seem to me to outweigh the factors on the other side of the scales. Those incidents are long over and done with; they are not continuing situations. The fact that the PCN issued may now turn out to be invalid can have had no effect on the conduct of the motorist at the time.


Mr Pitt-Payne quite properly did not suggest that any loss of revenue to the Council was a relevant factor since, as is well established, the purpose of parking enforcement is traffic control, not revenue raising: see R (City of Westminster) v The Parking Adjudicator QBD Judgment 22 May 2002.
The future of parking control, on the other hand, is a continuing future consideration and is the one to which I ought to give precedence. In my view it is clear that the interests of justice, and the interests of both Local Authorities and the public, are best served by Local Authorities scrupulously observing the statutory requirements attached to their powers of enforcement. Their not doing so can only result in parking control being brought into disrepute.

I accordingly find that this PCN is a nullity and uphold the decision of Parking Adjudicator Richard Crabb to allow this appeal.


I should record that Mr Sutton made an application for costs. He did so somewhat tentatively, correctly so. I may only award costs against the Council if I find that it acted frivolously, vexatiously, or wholly unreasonably. There is no question of its having done so.



Original Decision dated 2 July 2002, subsequently reviewed under Regulation 11 of The Road Traffic (Parking Adjudicators) (London) Regulations 1993

The Appellant advanced a number of grounds of appeal and has been successful on ground No 5 as set out in a document with the heading "Grounds relating to the alleged contravention did not occur". This is that the Penalty Charge Notice was  not legally issued nor was it valid.


When Mr Sutton first appeared before me on the 7th May 2002 the local authority was not present or represented. Mr Sutton intimated that he had a number of legal authorities to which he would be referring. In these circumstances I thought it best that I should have a hard copy of these and that the local authority should be supplied with the same.
Accordingly, this was done and the case was adjourned until today.
I had asked, in the meanwhile, if the local authority would like to comment on the documentation supplied to it and emanating from Mr Sutton.  By mid day today no comment had been forthcoming. A fax message was, however, sent today by the local authority , to say that the Council had no further comments to make and its position remained as set out in the Appeals submission.
Amongst the many documents submitted to me by Mr Sutton was a copy of the judgement of his case against the London Borough of Camden in the Central London County Court. District Judge Wigfield handed down the judgement and pages 19 to 28 are the relevant pages. The local authority has a copy of this judgement.
The points to which the Judge refers in those pages are exactly the same as Mr Sutton raised in this appeal and are all concerned with the fact that a  Penalty Charge Notice MUST state what is set out in Sec 66(3)(a)-(f) inclusive of the Road Traffic Act 1991.
In particular, in this case, the PCN does not state that the penalty must be paid within 28 day period. Word MUST is mandatory. PCN also does not state that this period should begin with the date of the notice; also, no date of notice stated as such. PCN does not state that penalty must be paid within 14 period to begin with the date of the notice-date of issue and date of notice may not be the same. PCN also fails to refer to "before the end of the 28 day period" see sec 66(3)(e) RTA 1991 or to refer to the NTO being served by the "London authority on the person appearing to them to be the owner of the vehicle."
All these matters are traversed in some detail by Judge Wigfield and I incorporate pages 19-28 of his judgement into my adjudication as they are entirely to the point. I would also draw attention to the Judge's reference to the case of Moulder v Sutton London Borough Council at page 26 as it also deals with similar issues as arise in this case.
Although it may seem that this case is unmeritorious, as it is based on technical argument, the law is clear.
It follows that I allow this appeal.


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