R Neil Herron & Parking Appeals Ltd v The Parking Adjudicator Sunderland City Council (First interested party) The Secretary of State for Transport (Second interested party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Lord Justice Aikens,Sir David Keene,Lord Justice Rix |
| Judgment Date | 27 July 2011 |
| Neutral Citation | [2011] EWCA Civ 905,[2011] EWCA Civ 199 |
| Date | 27 July 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2010/1446 |
[2011] EWCA Civ 199
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Mckenna)
Before: Lord Justice Rix
Case No: C1/2010/1446
Mr Alun Jones QC and Mr Rupert Bowers (instructed by Jeffrey Green Russell) appeared on behalf of the Applicant
The Respondent did not appear and was not represented.
Lord Justice Rix:
This is the renewed application for permission to appeal brought by Parking Appeals Limited, as applicants, against the Parking Adjudicator, as respondent, with Sunderland City Council and Secretary of State for Transport as interested parties, in judicial review proceedings which have arisen out of the issue to the applicants of 39 PCNs, vernacularly known as parking tickets, in respect of vehicles parked by one or other of the applicants on single yellow lines in Frederick Street or St Thomas Street in Sunderland city centre within a controlled parking zone ("the zone"), whose legitimacy has been attacked in these proceedings. None of the PCNs was paid. The local council therefore issued a notice to the owner in each case requiring the owner to pay the £60 penalty charge or to make representations. Representations were made. The council refused to cancel the PCNs and appeals were lodged with the National Parking Adjudicator Service ("NPAS"). The appeal was heard first by Mr Andrew Keenan, a parking adjudicator, in the autumn of 2007, who by his decision dated 26 February 2008 dismissed the appeals save for one, where he directed the council to cancel the PCN. A review was applied for. The review was heard by another adjudicator, Ms Kennedy, who directed that Mr Keenan's decision should stand.
That led in due course to these judicial review proceedings, which came ultimately before Bean J, who gave his judgment in the matter on 25 May 2010 and it is from Bean J's judgment that this application for permission to appeal arises.
I think that this is not formally a second appeal in those circumstances but it has plainly gone through many hands. But in my judgment even if it were a second appeal it would meet the second appeal test of raising an important point of principle, however technical and, if wrong, unmeritorious, the point is. If right, of course, it can hardly be said to be lacking in all merit.
Many different points were raised before the Parking Adjudicator, all of which have gone save for one point of law which was the point which came before Bean J and that was a point really directed to the relevant regulation 4 of the Traffic Signs Regulations and General Directions 2002 ("the 2002 directions"), which define what a controlled parking zone is. It is only if there is ultimately a valid controlled parking zone that these tickets can have effect.
As for that point of law, it in turn depended upon a number of different factual submissions pursuant to which it was submitted that the Sunderland zone failed to meet its definitional requirements and foremost amongst those factual points raised before Bean J is a point which has now gone, it is no longer relied on, and that is that the existence of zebra crossings with their white zigzag lines on either side of them, replacing what would otherwise be a continuation of typical single yellow lines or possibly double yellow lines, was by itself a vital defect in the signage of the zone, thereby depriving it of validity under regulation 4. Despite the withdrawal of the reliance on zebra crossings and their zigzag lines and its prominence before the learned judge, it seems reasonably clear, although perhaps no specific findings of fact have clearly been made in this respect, that there are other arguably more or less substantial parts of the zone which lack proper yellow line marking which were relied on in the proceedings below.
The significance of yellow line marking is that the definition of a controlled parking zone to be found in regulation 4 is that it is:
"an area (i) in which, except where parking places have been provided, every road has been marked with one or more of the road markings shown in diagrams 1017… 1018.1…1019….and 1020.1"
Diagram 1017 is the diagram for a single yellow line. Diagram 1018.1 is the diagram for double yellow lines and the other diagram numbers relate to other appropriate signages.
There are other provisions relating to upright signages, but as I understand the essence of the argument which is advanced on this application the real stand which is taken is not for instance so much by reference to regulation 25 but by reference to regulation 4.
Despite the clear findings of fact in relation to yellow line signages in the zone in at any rate the judgment of Bean J, there is some evidence that reasonably substantial parts of the zone as a whole have defective yellow line signages. See for instance the discussion by Mr Keenan in his adjudication relating to various parts of the zone under paragraph 12 of his adjudication. I will take one example of that, that dealt with under subparagraph (k) of that paragraph, where Mr Keenan discusses the central area development and observes that whole roads referred to in this central area are:
"in fact lined only with hatched markings which have no legal standing. … There are no yellow lines and it is therefore submitted that the lining and signing of these roads invalidate the whole of the CPZ as it becomes an uncontrolled road"
That is the essential issue of law for which permission to move for judicial review was granted and which was dealt with by Bean J in his judgment.
Although the respondent council submitted that regulation 4 did not require that each part of every road had to be marked with an appropriate signage, nevertheless the judge did not accept that submission and ruled that it was every part of every road that had to be appropriately signed, save for those parts where some alternative signage had to be in place, such as the zebra crossing signage. He put the matter in this way in paragraph 23 of his judgment:
"In my judgment regulation 4 on its proper construction means that every part of every road in a CPZ, other than a parking bay, must be marked with a single or double yellow line (with or without the 'loading and unloading' equivalents) except where an alternative parking prohibition is marked out such as that imposed by the zig-zags on the approach to a pedestrian crossing"
However, despite that strict interpretation of regulation 4 the judge was ultimately against the applicants because, as he continued at paragraph 23 where I left off:
"Furthermore, I consider that any non-compliance whether accidental or (if I am wrong on the previous point) arising from the presence of an alternative parking prohibition, is immaterial if it is too far from the location of the particular motorist's contravention to have led him or her into error."
The judge thereby adopted a decision of the Chief Parking Adjudicator Caroline Sheppard in another case by the name of French and Dover District Council Case No: DD05005E, 8 January 2007, where Ms Shepherd held that where a defect in signage was in a different location from the one where the motorist had parked it could be treated as immaterial. The judge stated at paragraph 19 of his judgment that he agreed with that decision.
It may be that this quality of immateriality is the same or is different from a concept of a de minimis allowance in defective signage, but, whether it is or whether it is not, the essence of the Chief Parking Adjudicator's decision and of the judge's ruling in this case was that a defect became immaterial if it could not, because of its distance from the position where the motorist had parked his car on a yellow line, have led to any possible confusion in the case of that motorist. In other words the question of signage materiality or immateriality was related to the motorist's parking offence in question. It was, if I may put it in this way an ad hominem or ad hoc or in that sense a subjective view of immateriality or the quality of being de minimis.
French v Dover District Council , as I understand it however, did not relate to an attack on substantial or numerous defects existing throughout a zone as a whole but related to a particular sign, as it was I think in the same street as where the motorist was parked in that case, albeit well away from where he was parked. It was held in that case that that single particular signage, it was an upright sign I think in that case, was not confusing and could be treated as immaterial. Since it was a single signage relied upon it could quite properly be treated as being de minimis or immaterial in respect of the zone as a whole, quite apart from any question of its lack of impact on the motorist involved. Whether that works in respect of the more substantial and numerous defects relied upon in this case is another question.
In these circumstances, it seems to me that the reason why there is a substantial point appropriate for consideration in this court, and I do not think that this court has previously considered such an issue, is whether you can legitimately put together, in the way in which the judge has sought to do so, two separate concepts or arguably two separate concepts. One concept is a definitional concept, such as is found in regulation 4, as to what is required for a CPZ to be a proper zone within...
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