http://www.islingtongazette.co.uk/news/islington_council_could_be_liable_to_repay_every_parking_ticket_issued_since_2008_1_2176621There were two review hearings reported on patas today (Mon).
The PCN's were held to be substantially compliant (if poorly worded) however the NtO and NoR were defective.
So 2-1 to us and there are bigger darker forces than you can possibly imagine on the move here.
The High Court could be next and I have a nice surprise for Islington and other councils too.
Case Reference: 2130236316
Appellant: Mr Sai Wong
Authority: Islington
VRM: OE54FWH
PCN: IS29002947
Contravention Date: 04 Mar 2013
Contravention Time: 08:56
Contravention Location: Amwell Street EC1
Penalty Amount: £130.00
Contravention: Parked in a residents or shared use pay without displaying a permit, voucher or Pay & display ticket
Decision Date: 24 Jun 2013
Adjudicator: Edward Houghton
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons: The contravention itself in this case is not in dispute. The Appellant's case is, in summary, that the Penalty Charge Notice (PCN), Notice to Owner (NTO) and Notice of Rejection (NOR) are all defective and that their issue amount to a procedural impropriety ( or, in the case of the PCN, that the defect has the effect of its ceasing to be a PCN at all as defined by the regulations). .
The Appeal comes before me in the context of an application for review by the enforcement authority of a decision of my learned colleague Mr Lawrence allowing an appeal by Mr Wong on the basis that Islington's PCN was indeed defective and, in addition, that the Controlled Zone signage had been insufficiently proved. The issue of the compliance or otherwise of the PCN arises both in this appeal and the application for review. The remaining issues arise in the case of this appeal only. The Appellant appeared at the hearing represented by Mr Herbert and the Council was represented by Mr Warrington of Counsel. Mr Warrington was formally instructed only in the case of the review and I therefore had the benefit of his submissions relating to the PCN only. ; The Council's submissions in the case of the issues in this appeal relating to the NOR and NTO were dealt with by its officer Mr Hogan. I have heard detailed oral submissions and have considered them carefully together with the full written submissions in support.
THE PCN
This reads, so far as is material to the issues before me as follows:-
HOW TO CHALLENGE
If you think you should not have to pay this penalty charge you should write to London Borough of Islington at (address) or by e-mail at (address) - please include any supporting evidence.
If you make representations challenging the penalty charge please do not make a payment
If we receive representations during the 14day reduced payment period but do not accept the challenge, we will allow a further 14 days from the date of the rejection letter in which to pay the reduced payment.
If representations are made before the Notice to Owner is served representations will be considered notwithstanding those representations, representations must be made in the form and at the time specified in the Notice to Owner.
If the Penalty Charge Notice remains unpaid after the expiry of the 28day period mentioned above a Notice to Owner may be served on the owner of the vehicle by the enforcement authority. The Notice to Owner will entitle that person to make formal representations to the enforcement authority against liability for payment. If we accept the representations we will not require payment of the penalty.
If we reject representations against the Notice to Owner the owner of the vehicle may appeal to an independent adjudicator. Details of how to do this will be supplied with the notice of rejection of representations.
The core of the Appellant's submissions is that this does not comply with the requirements of Regulation 3(2) The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 which states:-
(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information-
(a)that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and .
(b)that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served- .
(i)those representations will be considered; .
(ii)but that, if a notice to owner is served notwithstanding those representations, representations against the penalty charge must be made in the form and manner and at the time specified in the notice to owner.
The Appellant submits in summary that the wording of the PCN is ungrammatical and not in accordance with the Regulation. He suggests it might leave the motorist thinking that there was no need to respond to the NTO pending a reply to informal representations; and that indeed if the recipient of the PCN is not the owner he or she may never see the NTO at all. The Council submits that, read as a whole, the PCN is substantially compliant, and is not misleading, as confirmed by the fact that the Appellant himself was not misled.
The leading case on the test to be applied in considering this issue is R ( Hackney Drivers Association Ltd)v The Parking adjudicator and Lancashire CC [2012] EWHC 3394(Admin) ("the Lancashire case"). In that case a PCN which did not use the words "those representations will be considered" (and informed the motorist that if the PCN was challenged in 14 days the council would decide whether to extend the discount period) was nevertheless held to convey the information required to be given by regulation 3(2) if read as a whole. The learned Judge said that "it is important to read regulation 3(2) as a whole as its provisions are intended to be cumulative" It is clear from the decision that a failure to follow precisely the wording of the regulations or leaving out some words is not necessarily fatal.
In the present case the sentence "If representations are made before the Notice to Owner is served representations will be considered notwithstanding those representations, representations must be made in the form and at the time specified in the Notice to Owner." This clearly suffers from defective syntax, and it looks as though what has happened is that the draftsman intended to copy in the full wording of that part of the regulation. but unfortunately ( possibly by something as simple as a cut and paste error) left out the words "but if a Notice to Owner is served".
This naturally affects the clarity of the sentence and its meaning. The motorist reading this would certainly understand that the representations, which he has just been told by the preceding sentence that he may make, will be considered. However he would then ask himself what "notwithstanding those representations, representations must be made in the form and at the time specified in the Notice to Owner" means. Does it mean that he somehow has to make two sets of representations at this point? And anyway what is a Notice to Owner, something hitherto not mentioned?
I have no difficulty in accepting (as Mr Lawrence clearly did) that this sentence on its own does not strictly comply with regulation 3(2)(ii) and is left too opaque to do so, even substantially. However it seems to me that the next paragraph supplies sufficient clarification. The motorist on reading it would say to himself "Ah I see, if I haven't paid in 28 days I, or the owner if not me, will get this "Notice" and it is at that point that I, or the owner if not me, will be able to make formal representations. That's what they must mean by "representations must be made in the form and at the time specified in the Notice to Owner".
The Appellant himself in his written submissions seems to agree that this is so. He states at Para 5
Some reasonable recipients who happen to be the owner as is commonly but not always the case will understand from the ambiguous statement on the Islington PCN that even though they have made informal representations they must also make or remake their representations in the form and manner specified on the Notice to Owner. This is exactly what is stated on the Islington PCN and it is wrong. A PCN recipient who happens to be the vehicle owner does NOT have to make his/her informal representations to which s/he has not yet received a response, again in the form and manner specified in the Notice to Owner.
I am unable to agree with the Appellant. It seems to me that the motorist is required to repeat submissions in response to the NTO. The regulations clearly require them to be made in the time and form specified "notwithstanding" the previous, informal, submissions. By noticeable contrast with the post- NTO position, there is no duty in the regulations imposed on the Council to reply to informal representations within a specified time, or at all; and even if this duty were to be implied there is no provision preventing the issue of an NTO pending such a reply: Regulation 19 The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 simply provides:_
(1) Subject to regulation 20, where-
(a) a penalty charge notice has been served with respect to a vehicle under regulation 9; and
(b)the period of 28 days specified in the penalty charge notice as the period within which the penalty charge is to be paid has expired without that charge being paid,
the enforcement authority concerned may serve a notice ("a notice to owner") on the person who appears to them to have been the owner of the vehicle when the alleged contravention occurred.
Although Councils very sensibly do normally make a response to the informal representations having considered them (and may be in difficulty demonstrating that they have in fact considered them if they do not respond), the legislation does indeed appear to allow for the motorist's first indication that his informal representations have not found favour with the Council being the arrival of the NTO. If the driver is also the owner he then has the full statutory opportunity to make formal representations which the Council is under a duty to consider and respond to in the strict terms provided by regulations 4 and 5. If the driver is not the owner he is not liable for the penalty in any event, representations or no.
The Appellant submits that the use of the definite article "The notice to owner" is incompatible with wording of Para 1(j) of the schedule to the The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 which states :-
"that if the penalty charge is not paid before the end of the period of 28 days referred to in subparagraph (g), a notice to owner may be served by the enforcement authority on the owner of the vehicle
It seems to me this has no substance to it .The paragraph in the PCN states explicitly that an NTO may be served and the reference to "the" NTO clearly refers back, and means "the NTO in question if and when served".
In my judgment the two paragraphs read cumulatively and as a whole adequately convey the two pieces of information required by regulation 3(2) i.e. that the Council will consider representations, and that if an NTO is served notwithstanding them any further representations must be made in the form and within the time limit specified in the NTO.
I therefore find the PCN to be substantially compliant. Although it is certainly the case that the drafting could be improved upon, the fact that improvement is possible and desirable does not necessarily prevent it from being adequate for its purpose.
THE NOTICE TO OWNER
The Appellant submits that the NTO is defective in that it fails to comply with regulation 3(e) Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 which state:-
(3) A notice to owner served under regulation 19 of the General Regulations must, in addition to the matters required to be included in it under that regulation, include the following information....
(e) in general terms, the form and manner in which an appeal may be made.
The NTO states ( having in a previous paragraph set out the procedures for the issue of the NOR and the right of appeal) "Please note that an adjudicator cannot allow the appeal on the basis of mitigating circumstances but may refer the case back to the authority. We will tell you how to make an appeal when we write to you."
The Appellant submits that this is insufficient to comply with regulation 3(e). Mr Hogan was unable to point to any other wording on the NTO which might satisfy the requirement. The only possible candidate might be the sentence further on "For more information about the representation and appeals process please visit (website address). However it seems to me that the requirement is clear enough and requires the Council to provide the information on the NTO itself, not to provide it at some future time or elsewhere. Mr Hogan points out that the information is included on the NOR. This is so, and there is an identically worded provision in regulation 6(1)( c) which requires it to be included. However the regulations clearly require this information to be given twice, i.e. on each document. The Council should have included something on the NTO in similar terms to its reference to the Appeal form etc set out on the NOR.
As the NTO is missing one of the items it is required to contain it is defective and its issue is a procedural impropriety.THE NOTICE OF REJECTION
The Appellant submits that the NOR is defective in that it states that a charge certificate will be served instead of may be served. Regulation 6 The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides:-
(1) Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2) (b), that notice shall-
(a) state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection-
(I) the penalty charge is paid; or
(ii) the person on whom the notice is served appeals to an adjudicator against the penalty charge;
(b) indicate the nature of an adjudicator's power to award costs; and
(c) describe in general terms the form and manner in which an appeal to an adjudicator must be made.
(2) A notice of rejection served in accordance with paragraph (1) may contain such other information as the enforcement authority considers appropriate.
The relevant part of the NOR reads
"I am therefore formally rejecting your representations. This means that your options are either to pay the penalty charge or to appeal to the Parking and Traffic Appeals Service. Whichever one you chose you should do this before the end of the period of 28 days beginning with the date of service of this notice of rejection. If no action is taken by that time, the next step will be for us to serve a charge certificate notifying you that the right to appeal will have expired and that the charge will be increased to £195"
The Appellant refers me to a previous decision of my learned colleague Neeti Haria in the case of City of London v McMurrough (2013) PATAS 2130049862 allowing the appeal on this ( and other) grounds. That decision refers to an number of other decisions by different Adjudicators coming to the same conclusion. Although the wording in the various rejection notices in these case was not identical they all stated that charge certificate ( or in one case an enforcement notice) will be issued rather than may be issued. The Council in the present case states that the next step will be for us to serve a charge certificate - and this is not what the regulations require it to state. I share the view of my colleagues that it is not substantially compliant with a requirement to state only that something may be done, to state that it definitely will be done.
It seems to me that the NOR in this case does not comply with the requirements of regulation 6 and its issue is also a procedural impropriety.
