Monday, April 25, 2011

Have you been issued with a PCN?

If you have then it is important that you check whether the location where you were issued with the PCN is correctly marked. If it isn't then you may find the extracts from the Moss decision useful.

[2010] EWHC 2923 (Admin)
Verbatim extracts of the judgment of Ouseley J of 14 October 2010 that
referred to law relating to parking enforcement (emphasis added)

On street Parking
I do not propose to deal with the two spaces at the Town Hall because there is no doubt that the PCNs were unlawfully issued. The matter was remedied, and a comparatively small sum was involved.

28 The Local Authorities' Traffic Orders Procedure (England and Wales) Regulations 1996, SI 1996/2499, requires in Regulation 18 that such traffic signs as the local authority may consider requisite for securing that adequate information as to the effect of the order is available to road users should be placed on or near the road before a traffic regulation order comes into force.

Mr Moss's first contention to the auditor was that the road markings used by Bolton MBC for its restricted areas, such as loading bays or doctors' or disabled parking bays, and for permitted or designated parking areas, invariably did not comply with what was prescribed by the Regulations. He provided a schedule of some of these together with generalised evidence that he had been unable to find a single one that met the requirements of the Regulations. He provided photographs of a number of contravening markings but did not provide a copy of most of the prescribed diagrams to enable a comparison to be made between the actual and the prescribed markings.

30 Mr Gullick submitted, based on Mr Moss's evidence, that the non compliance with the prescribed diagrams was more than trivial or de minimis on each occasion. The council had accepted, during 2007, that most of its road parking markings did not comply with the Regulations. As from October 2007 it set about re marking them, starting with the roads which generated most PCNs.

38 Of some relevance also is the decision of Jackson J in R (Barnet London Borough Council) v Parking Adjudicator [2006] EWHC 2357 Admin, [2007] RTR 14. This concerned the invalidity of a PCN which did not state the date of its issue as required by Section 66 of the Road Traffic Act 1991. Jackson J dealt with the argument that no prejudice was caused to the defendant by that clear non compliance, at paragraphs 41 to 42:

"41 Mr Lewis submits that even if there was non compliance in this respect, nevertheless
no prejudice was caused, PCNs should not be regarded as invalid. I do not accept this
submission. Prejudice is irrelevant and does not need to be established. The 1991 Act
creates a scheme for the civil enforcement of parking control. Under this scheme,
motorists become liable to pay financial penalties when certain
specified statutory conditions are met. If the statutory conditions are
not met, then the financial liability does not arise.

42 In the present case, the two PCNs issued by Barnet on 31st March 2005 did not
comply with section 66 (3) (c), (d) and (e) of the 1991 Act. Accordingly, the
requirements of section 66 were not satisfied and no financial liability was triggered
either by the PCN or by any subsequent stage in the process such as the notice to

39 Mr Gullick also relied on what Mr Gary Hickinbottom (as he then was) said in the Parking Appeals Service on the review of the decision of the Chief Parking Adjudicator in Burnett v Buckinghamshire County Council in April 1988. He said obiter that signs had to comply with the Traffic Signs Regulations and General Directions, adding:
"Consequently, in summary, as a condition precedent of a local authority enforcing a parking penalty, as a breach of a TRO made under the 1984 Act, the obligations of a motorist must be properly signed in accordance with the detailed provisions of the [2002] Regulations."

Part of his overall conclusion was this:

"Where an adjudicator finds that an authority has acted ultra vires in failing to comply with its mandatory obligations properly to set out the alleged contravention of a PCN or properly to sign a parking or waiting restriction, he can and indeed must find that the authority cannot pursue a penalty based upon its own unlawful act with the result that he must allow the appellant's appeal. In this case the council has failed to comply with two mandatory obligations. First, it failed to sign the restriction and, second, it failed properly to identify the contravention of the relevant Regulations upon which it purports to rely. By virtue of these failings, the council has acted beyond its powers and the appellant's appeal must be allowed."

46 Of course I am troubled by the width of the submissions which such an approach appears to be capable of generating. Mr Gullick submitted that where the transverse lines enclosing a long street bay were single and not double, or it may be the other way round, the entire length of bays was not subject to enforcement by PCN. The submission is troubling because it would appear to affect the obligation to pay and display, and potentially the permission to park. On the other hand, I can also see the attraction at least to some of meeting what may be zealous, technical and even over zealous car parking enforcement with a thoroughly technical response. The leeway claimed by the errant local authority is not to be denied by it to the errant driver.

48 In the end, and without great confidence, I have concluded that what Mr Hickinbottom said in Buckinghamshire County Council should be taken to be the law. The purpose behind a common prescribed system of road signs and markings includes certainty for drivers wherever they are in the country. They are not therefore faced with different varieties of signs wherever they go for the same permitted parking, prohibitions and restrictions. The common system also regulates signs in order to avoid clutter and confusion to road users by regulating what can or cannot be put on the road surface or signs by its side.

49 The statutory system of prescribed road signs also forbids the use of non compliant road signs. If the statutory prohibition in Section 64 (4) of the 1984 Act were enforced, it would cause the removal of many signs necessary to delineate and inform drivers about the extent of permission and restrictions or prohibitions. That would also prevent adequate information being conveyed about them to the driver. A local authority should not be able to rely on its contraventions of statute as a basis for exacting a penalty and the civil enforcement measures that follow from non payment of a PCN.

50 As this is also the approach which, following Mr Hickinbottom's decision in Buckinghamshire County Council in 1998, I assume parking adjudicators have routinely followed for many years without challenge by non compliant local authorities, I would be reluctant to upset what appears to be the current system of parking enforcement and parking adjudicating decisions on the basis of the arguments which I have heard. Bolton MBC has not attempted to take these issues further on appeal against a parking adjudicator or to address them before me. Such an approach should also act as a spur to compliance by local authorities with a duty under Section 64 rather than giving them a licence to adopt a slovenly indifference, which appears to have been Bolton MBC's approach until Mr Moss stung them into action in October 2007.

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