The Queen (on the application of Preeti Pereira) v Environment and Traffic Adjudicators
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 03 April 2020 |
| Neutral Citation | [2020] EWHC 811 (Admin) |
| Docket Number | Case No: CO/3424/2019 |
| Date | 03 April 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 811 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/3424/2019
and
George Laurence QC and Simon Adamyk (instructed by MYERS FLETCHER & GORDON) for the Claimant
The Defendant did not appear and was not represented
The Interested Party did not appear and was not represented
Hearing dates: 19 February 2020
Approved Judgment
Introduction
This is a case about a car parked on a pavement: a black Land Rover owned by the claimant (“Dr Pereira”) which received a parking ticket from the interested party (“Southwark”). It is also a case in which some potentially far-reaching legal points were raised, in particular in relation to when a privately-owned piece of pavement is a “road to which the public has access” so as to preclude even the owner of the land from parking there. Viewed from the perspective of Dr Pereira, the story of this case can I think be encapsulated in this way: this was part of the pavement privately-owned by me and my husband (“Dr Stephen Pereira”), where we have parked our cars on most days of the year for many years in front of our own hedge; surely that pattern of conduct by us means we haven't permitted ‘public access’ to the pavement so as to make our parking of our cars illegal. Viewed from Southwark's perspective, and from the perspective of the mum pushing a toddler in a buggy along the pavement, in one of the photos which I was shown, the story of this case can perhaps be encapsulated in this way: this is a pavement, privately-owned but publicly-accessed and used; neither the Pereiras, nor anyone else, can block part of the pavement by parking on it; if a drunk driver drove along the pavement, they would be driving on land to which the public has access and would not escape conviction.
The idea that someone can commit an offence by parking their own car on their own privately-owned part of the pavement is not new. In 2009 Dr Dawood challenged the parking ticket received for parking his motor scooter on a section of pavement in Cleveland Street W1 of which he was the owner. His claim for judicial review of the decision of the parking adjudicator failed. In a ruling refusing permission to appeal at [2009] EWCA Civ 1411, Sedley LJ said this: “One might have thought that nobody could commit a criminal offence by parking a motor scooter on his own land”. In that case, the courts concluded that such an offence had occurred. That was also the conclusion, in the present case, of Southwark and of the adjudicators who heard an appeal and conducted a review.
Dr Pereira and Dr Stephen Pereira (“the Pereiras”) live at Number 1, College Road, Dulwich Village, London. They own their house and land surrounding it. The front of the house, facing College Road, has a strip of land between the house and a hedge. In the middle of the hedge is a gate which a person can use to get to the front door. This case is about the land outside the hedge, between it and College Road, in the middle of which the mum with the buggy was photographed walking alongside the Pereiras' parked car.
I will start by describing the lie of the land. I will try to do so in fewer than the thousand words which a picture would paint. You are walking in a northerly direction on the pavement on the east side of College Road. You have just crossed Woodyard Lane. To your right is the hedge and the Pereiras' house. There are white wooden posts sticking out of the pavement, some of which are linked by chains. The pavement is a wide one, wide enough for three cars parked side by side. The pavement you are standing on can be thought of as comprising three strips of land, side by side, as I will explain. But to the naked eye, it is a single pavement. On the far left-hand side of the pavement, nearest to College Road and the traffic driving up and down it, you would be walking on a strip of land not owned by the Pereiras. It has chain-linked white posts to your immediate left. I will call this “the chain-link strip”. As soon as you had gone past the Pereiras' house, walking along the chain-link strip, you would encounter a tree, with a white post in front of you. That would make you deviate into the middle of the pavement. I will call the middle of the pavement “the middle strip”. The middle strip is owned by the Pereiras. It forms part of their registered title. In the photo the mum with the buggy is walking along the middle strip. In a version of the photo with superimposed colour hatching, the middle strip appears to be a little less than a car's breadth. If you were walking on the right-hand side of the pavement, this is the part of the pavement nearest to the Pereiras' house. Like the middle strip, this is land owned by the Pereiras, adjacent to the hedge and the gate. I will call this “the hedge strip”. It also forms part of their registered title. On a day when no car is parked in the hedge strip, if you walked along that strip past the Pereiras' house, you would encounter a white wooden post which, like the tree and post in the chain-link strip, would make you deviate into the middle strip. All of which means that the most natural route to walk along the pavement is in the middle strip.
In this case, Dr Pereira's car was parked on the hedge strip. In all the photographs which I have seen, this is where the parking of a car outside the house is illustrated. Judging from the photos, there would probably be enough space to park three cars in a line nose to tail, directly alongside the hedge, in the hedge strip. It makes perfect sense for the Pereiras and their visitors to park in the hedge strip. That leaves the middle strip clear and unobstructed. Moreover, the photos suggest that the combined width of the hedge strip and the middle strip would be less than two cars' breadth, parked side by side. All of this supports the common sense position that when the Pereiras (and their guests) park on their own land outside their house they park on the hedge strip, nose to tail if there is more than one car being parked.
The area consisting of the middle strip and the hedge strip combined was referred to by everyone in this case as “the Relevant Land”. That has been for two reasons. First, because that is the land owned by the Pereiras. Secondly, because various claims were made by the Pereiras and by Southwark about the whole of that land. In my judgment, it is important to remember that the part of the land on which Dr Pereira's Land Rover was parked when the ticket was issued was the hedge strip. In written submissions, Counsel for the Pereiras have described this as “the all-important hedge strip”. I agree with that characterisation.
Section 15(1) of the Greater London Council (General Powers) Act 1974, under the heading “As to parking on footways, grass verges, etc”, provides: “… any person who causes or permits any vehicle to be parked in Greater London with one or more wheels on or over any part of the road… shall be guilty of an offence…” Section 2, headed “interpretation”, provides: “‘road’ has the same meaning as in the [Road Traffic Regulation Act] 1967 and includes any length of road and any part of the width of a road”. Section 104 (1) of the 1967 Act provides: “‘road’ means any highway and any other road to which the public has access…” There was a technical argument as to whether this, or the materially identical definition in the Road Traffic Regulation Act 1984, was the legally correct one, but everybody agreed that there was no need to resolve this and that nothing could turn on it in the present case. In the case-law, there is a parallel between “road to which the public has access” and “public place”: Richardson v DPP [2019] EWHC 428 (Admin) [2019] 4 WLR 46 at paragraph 23. The definition of “road” in section 104 has two limbs: the “highway limb” (“any highway”) and the “public access road limb” (“any other road to which the public has access”): Clarke v Kato [1998] 1 WLR 1647 at 1651H. It was agreed on all sides in this case that the onus was on Southwark to prove, on the balance of probabilities, that the hedge strip fell within one or other of these two limbs.
Southwark issued the penalty charge notice (parking ticket) in relation to Dr Pereira's car, parked on the hedge strip, in the middle of the day on 15 July 2018. It was challenged by letter dated 20 July 2018, on the basis that the vehicle “was parked on land which belongs to me and which falls within the title of my house”. The recipient of a penalty charge notice who wishes to challenge it has procedural rights. There is a right of appeal to an adjudicator, followed by a right to seek review by a review adjudicator, followed by a right to seek judicial review in the High Court.
i) In this case, an appeal hearing took place before an adjudicator on 4 and 5 March 2019, culminating in a determination dated 26 March 2019 by which the adjudicator refused the appeal and upheld the penalty charge notice. The appeal adjudicator determined that Southwark had established the highway limb, on the basis that the Relevant Land had been demonstrated to be an adopted public highway (“APH”). The appeal adjudicator determined, in the alternative, that Southwark had established the public access road limb.
ii) These conclusions were challenged by Dr Pereira and a review hearing before a review adjudicator took place on 23 May 2019. That led to a...
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