Parking Meltdown as implications of Moses v Barnet strike home

This is the advice issued by ALG's Nick Lester as Decriminalised Parking Enforcement goes into meltdown.

Borough Parking Managers
Contact:
Nick Lester
Direct line:
020 7934 9905
Fax:
020 7934 9932
Email:
nick.lester@alg.gov.uk

Date:
9 August 2006

Dear Colleague

London Borough of Barnet Judicial Review

I am writing further to my letter of 3 May 2006 now that the result of the judicial review requested by LB Barnet with respect to the Moses case has been decided.

The judgement in the High Court upheld the adjudicator’s decision in the Moses case, with no substantial differences. In particular, the judge held that if a PCN did not have the date of issue (or date of notice) as well as the date of contravention explicitly shown then the PCN becomes a nullity. I attach a brief note of the judgement as we have yet to receive a transcript.

As my letter of 3rd May said, those boroughs where PCNs have complied with this requirement to the effect that they have no open cases with non-compliant PCNs will not be affected.

Boroughs with open non-compliant PCNs do need to give careful consideration to their future actions and are recommended to seek their own legal advice. This letter should not be taken as formal legal advice. My own views are:
· Boroughs should ensure that their PCN format complies with the Al’s Bar decision as a matter of urgency (ie that the PCN contains both a date of issue (or notice) and a date of contravention, even where these are the same).
· Boroughs should ensure that they do not issue any further PCNs that do not comply, even if this means suspending enforcement pending a redesign of the notice. The court’s decision makes clear that any non-compliant PCNs are a nullity. It is also clear that by “substantially compliant” the court means that the PCN must wholly comply with the Act in substance (but not necessarily literally) rather than meaning that if it almost meets the requirements (say to 90% or 95%) then that is sufficient.
· Boroughs may not enforce non-compliant PCNs. This means that no NtOs or charge certificates should be sent out, nor should debt registrations or bailiff’s warrants be sought with respect to non-compliant PCNs.
· Boroughs may continue to receive payments made against non-compliant PCNs and do not need to refund any payments already made. The adjudicators have already considered, and rejected, a bid to re-open previously closed cases on this issue.

Some boroughs have also raised with me the question of whether the adjudicator can allow appeal on the basis of an argument which has not been raised by the appellant at any stage. The Moses case judgement did not touch on this matter and this has not been raised as a focus of any judgements so far. Where court rulings have referred to this matter the references are conflicting. Clearly a further judicial review would be needed to settle the issue once and for all but in view of the outcomes of judicial action so far, I would not recommend this course of action as part of this case as, whatever the outcome, it would not reflect well upon the boroughs.

As always, should anyone wish to discuss this issue, please feel free to contact me.

Yours sincerely
Nick Lester
Director, Transport, Environment and Planning

Enc.

BARNET JR JUDGEMENT 02 AUGUST 2006

1. INTRODUCTION
Mr Justice Jackson set out the requirements of a Penalty Charge Notice, as defined in S66(3) of the Road Traffic Act 1991, and in the extension of decriminalised enforcement by the LLA Act 2000 to include service of PCNs by post.

2. THE FACTS
Mr Justice Jackson went through the wordings of the PCNs at issue in detail. He pointed out that all the parties had agreed that, in the case of the second PCN, the motorist (Mr Moses) had driven away before the PCN could be issued.

In both cases, the motorist made representations to Barnet, which were rejected. He then appealed to the Parking Adjudicator. The Adjudicator allowed the appeals against both PCNs, on the facts of each case and because he found that the wording of the PCNs (failure to specify a date of notice) made them invalid.

Barnet accepted the direction on both decisions, but applied for review on the grounds that the Adjudicator had erred in his interpretation of the law and that the PCNs were valid.

Barnet did not request an oral hearing of the review application, and did not submit further evidence. The application was dismissed by another Adjudicator, who drew on an earlier decision (Al’s Bar v. Wandsworth) in stating that the wording of a PCN needed to show substantial compliance with the statutory requirements. He emphasised the need for certainty.

3. PRESENT PROCEEDINGS
Barnet claim that their PCNS were “substantially compliant”. They said that the way time limits were described on the Notice effectively added an extra day to the statutory requirement, but that this did not matter as it did not cause prejudice to the motorist.

Mr Justice Jackson noted the “helpful background” set out in the Chief Adjudicator’s acknowledgement of service and noted that Barnet’s new PCN does comply with the statutory requirements.

4. DATE OF NOTICE
The judge referred back to the RTA ’91 requirements of s.66(3) and confirmed that the date of notice must be on the charge, otherwise the statutory purpose of sections 66((3) c-e is thwarted.

He went on to explain that the date of contravention and the date of notice are usually the same, but not always because of the question of postal issue and if a contravention was observed just before midnight, but the PCN issue just after.

He also indicated that the date of notice had to appear on the main body of the ticket rather than just in the tear-off payment slip. To illustrate this, he mentioned in detail the example contained in the Al’s Bar decision of a motorist returning the slip with payment, and then wishing to dispute the Council’s refusal to accept a discounted payment.

Mr Justice Jackson mentioned that the requirement of the two dates, (contravention and notice), had been mentioned by Adjudicators on more than one occasion. He emphasised that the statutory requirement of the form of the PCN were simple and clear – compliance was not difficult and a specimen form had been available for more than 10 years. Enforcing authorities therefore had no excuses for non-compliance.

The Barnet PCN showed the date of the contravention, but not of the notice, therefore was not substantially compliant.

Mr Justice Jackson concluded this section of his judgement by stating that the question of relevance did not arise because the statutory conditions of the notice were not met, therefore financial liability did not arise.

5. EFFECT OF EXTRA DAY
The judge stated that, in the light of his decision, there was no need to pass judgement on the “effect of the extra day” in the wording of Barnet’s PCN. He stated that it would be necessary to consider further evidence to discover whether, in the case of Barnet enforcement procedures, a prejudice did occur, but that this was not necessary as he had already found that the PCNs were non-compliant.

6. CONCLUSION
Barnet’s application for Judicial review was dismissed. Leave to appeal against the judgement was refused.