Camden London Borough Council v Robert Gordon Humphreys and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Briggs,Lord Justice McCombe |
| Judgment Date | 26 January 2017 |
| Neutral Citation | [2017] EWCA Civ 24 |
| Docket Number | Case No: C1/2015/1261 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 2017 |
[2017] EWCA Civ 24
Lord Justice McCombe
Lord Justice Beatson
and
Lord Justice Briggs
Case No: C1/2015/1261
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
[2015] EWHC 713 (Admin) HHJ Coe QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Clive Sheldon QC (instructed by Legal Services, London Borough of Camden) for the Appellant
Robert Gordon Humphreys in person
Hearing date: 14 December 2016. Further submissions: 18 December 2016
Approved Judgment
I. Introduction:
This is an appeal by Camden London Borough Council ("the Council") from the order dated 18 February 2015 of Her Honour Judge Coe QC sitting in the Administrative Court as a judge of the High Court. The judge quashed the decision dated 12 December 2013 of Teresa Brennan, a Parking Adjudicator, dismissing the appeal of Mr Robert Humphreys, the respondent before this court, against a penalty charge notice. I summarise the judgment ( [2015] EWHC 713 (Admin)) at [19] – [23] below.
The principal substantive legal issue is the validity of the charge certificate in the sum of £195 in respect of a parking contravention by Mr Humphreys whose moped was parked in a suspended motorcycle parking area referred to as a "bay" in Drummond Street near Euston station in the following circumstances. The moped was left there lawfully, but the Council later erected a sign notifying motorists that parking in the bay would be suspended for a 24 hour period. The moped remained in the bay during the period and the penalty charge notice was issued. The question is whether the contravention for parking in a suspended parking bay only applies where the suspension was in effect at the time the driver parked or there is notice of a pending suspension, or whether it applies whenever the vehicle is in the bay during a period in which the bay is in fact suspended. A secondary substantive issue concerns the powers of a parking adjudicator and the court where there is a contravention.
In the event, at the hearing the substantive legal issues were overshadowed by an important procedural issue which arose as a result of the circumstances in which this matter came before this court. This was the total non-participation by the Council in the proceedings in the Administrative Court despite its receipt of the claim form and grounds some eleven months before the hearing. Should a party which has chosen not to participate in litigation and has not put its case before the first instance court be able to appeal against the decision at first instance and, if so, in what circumstances? On behalf of the Council, Mr Sheldon QC submitted that the issue in the case raised a question of general public importance. In the Council's notice of appeal, Mr Sheldon stated that by fixing the point in time at which the lawfulness of parking in a suspended bay is to be considered, the Administrative Court's judgment introduced "a significant carve out to the civil enforcement of parking contraventions" "which is of uncertain scope, potentially applies to many motorists and undermines the effective management of any event which requires a parking bay to be suspended". As the Council's application for permission to appeal was made over a month after the end of the period specified in CPR 52.4, it also applied for an extension of time in which to make that application. When granting an extension of time to the Council to appeal and permission to appeal, in view of the circumstances, Vos LJ did so on terms that no costs are to be recoverable against Mr Humphreys (the respondent). Nothing was said about the amount of the penalty charge, or the provision of legal representation for Mr Humphreys.
II. The Law:
The Council's power to impose penalty charges in respect of road traffic contraventions is derived from section 72 of the Traffic Management Act 2004 ("the 2004 Act"), the Civil Enforcement of Parking Contraventions (England) General Regulations 2007, SI No. 3483 of 2007 ("the 2007 General Regulations") made under section 72, and the Camden (Waiting and Loading Restrictions) (Civil Enforcement Area) Traffic Order 2012 No.1 of 2012 ("The Waiting and Loading Restrictions Order") made under the Road Traffic Regulation Act 1964.
By paragraph 2 of Schedule 7 to the 2004 Act:
"(1) In Greater London there is a parking contravention in relation to a vehicle if the vehicle is stationary in a parking place and—
(a)the vehicle has been left—
(i) otherwise than as authorised by or under any order relating to the parking place, or
(ii) beyond the period of parking that has been paid for,
(b) no parking charge payable with respect to the vehicle has been paid, or
(c) there has been, with respect to the vehicle, a contravention of any provision made by or under any order relating to the parking place."
By section 73 of the 2004 Act, parking contraventions are subject to civil enforcement.
By Article 9 of the Waiting and Loading Restrictions Order, the Council is empowered to suspend the use of a motorcycle parking space. Its material parts provide:
"9.1 Notwithstanding any other provisions of this Order, any person duly authorised by the Council… on the occasion of any public procession or for other good and sufficient reason, in cases of emergency, may suspend the use of any motorcycle parking area or any part thereof during such period as may be reasonably necessary."
"9.2 any person duly authorised by the Council…suspending the use of a motorcycle parking area or any part thereof, shall thereupon place or cause to be placed in or adjacent to the motorcycle parking area or that part thereof, as the case may be, the use of which us suspended, a traffic sign indicating that waiting by vehicles is prohibited."
9.3 No person shall cause or permit a vehicle to wait in a motorcycle area or any part thereof during such period as there is in or adjacent to that motorcycle parking area or that part thereof, as the case may be, a traffic sign placed in pursuant of Article 9.2."
The area in which Mr Humphreys parked his moped was governed by this provision.
Where a penalty charge is imposed in respect of a parking contravention, paragraph 5(2) of the 2007 General Regulations provides that, save in specified cases, liability for payment of a penalty charge rests with the person who was the owner of the vehicle at the material time.
Provision for making representations in respect of penalty charge notices and for appealing against them is contained in the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 SI No. 3482 ("the 2007 Appeals Regulations"). The grounds upon which representations can be made are contained in regulation 4. They include (see regulation 4(4)(a)) that the alleged contravention did not occur, the issue in this case.
Regulation 7 governs appeals to a parking adjudicator. It provides:
"(1) Where an authority serves a notice of rejection… in relation to representations made under regulation 4, the person who made those representations may appeal to an adjudicator against the authority's decision —
(a) before the end of the period of 28 days beginning with the date of service of the notice of rejection or;
(b) within such longer period as the adjudicator may allow.
(2) If, on an appeal under this regulation, the adjudicator after considering the representations in question together with any other representations made to the effect referred to in regulation 4(2)(b) and any representations made by the enforcement authority, concludes that a ground specified in regulation 4(4) applies, he shall allow the appeal and may give such directions to the enforcement authority as he may consider appropriate for the purpose of giving effect to his decision, and such directions may in particular include directions requiring-
(a) the cancellation of the penalty charge notice;
(b) the cancellation of the notice to the owner;
(c) the refund of such sum (if any) as may have been paid to the enforcement authority in respect of the penalty charge.
(3) It shall be the duty of the enforcement authority to which such a direction is given to comply with it forthwith.
(4) If the adjudicator does not allow the appeal but is satisfied that there are compelling reasons why, in the particular circumstances of the case, the notice to owner should be cancelled he may recommend the Enforcement Authority to cancel the notice to owner.
(5)….[Regulation 7(5) requires the enforcement authority to consider afresh the cancellation of the notice taking full account of the observations made by the adjudicator and to notify the appellant and the adjudicator whether or not it accepts the recommendation]…
(6) If the enforcement authority notifies the appellant and the Adjudicator that it does not accept the adjudicator's recommendation, it shall at the same time inform them of the reasons for its decision.
(7) No appeal to the adjudicator shall lie against the decision of the enforcement authority under paragraph (6).
(8) If the enforcement authority accepts the adjudicator's recommendation it shall forthwith cancel the notice to the owner and refund to the appellant any sum paid in respect of the penalty charge.
(9) If the enforcement authority fails to comply with the requirements of paragraph (5) [to consider afresh the cancellation of the notice and to notify the appellant and the adjudicator whether or not it accepts the adjudicator's recommendation] the authority shall be taken to have accepted the adjudicator's recommendation and shall cancel the notice to owner and refund to the appellant any sum paid in respect of the penalty charge immediately...
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