Shiva Ltd v Transport for London [2011] EWCA Civ 1189

Case No B2/2011/0014[2011] EWCA Civ 1189
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
MR JUSTICE JACK
CC/2010/0498
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/11/2011
Before
THE RT HON LORD NEUBERGER (MASTER OF THE ROLLS)LORD JUSTICE CARNWATHLORD JUSTICE JACKSON
Between
SHIVA LIMITEDAppellant(1) TRANSPORT FOR LONDONRespondent(2) NSL LIMITEDRespondent
Russell Gray (instructed by Shiva Limited) for AppellantSamantha Broadfoot (instructed by TFL Legal) for First Respondent,NSL Services Ltd (Sued As NCP Services Ltd) unrepresented as Second DefendantHearing Hearing date : Tuesday 11th October, 2011
JudgmentCARNWATH LJ :Factual background
[1]On the afternoon of Sunday 16 December 2007 Mr Gray parked a Toyota pick-up truck belonging to his company, Shiva Ltd, outside 108 Shoreditch High Street, London, E1. He had gone there for the purpose of loading up some goods. The road was a 'red route', but he left the truck in a bay where parking was permitted for loading and unloading with a maximum stay of 20 minutes. It is now common ground that he was within his rights to do so. The issue concerns the legality of the authority’s actions in response.[2]An industrious parking attendant was passing. He was employed by NCP Services Ltd, who were acting as agents for the relevant authority, Transport for London.His instructions were to observe for a minimum period of 3 minutes. After 4 minutes he had seen no sign of loading or unloading. So he issued a parking ticket.[3]There is no issue about that aspect. It seems clear under the relevant statutory provisions (to which I will come) that a reasonable belief that the car was illegally parked was sufficient to entitle the parking attendant to issue a parking ticket. Equally, under the same legislation, if the owner can show, as Mr Gray could, that there had in fact been no contravention, he was entitled to have the ticket cancelled, and any payment repaid. So, as Mr Gray accepts, no serious harm was done.[4]Unfortunately for Mr Gray that was not all that happened. In addition to issuing the ticket, the parking attendant arranged for the removal of the vehicle. Some minutes after his arrival at the shop Mr Gray was alerted by his car alarm. He emerged to find his truck being loaded on to a vehicle for removal. (At trial TfL claimed that this happened after the 20 minute limit had passed, but that issue was resolved by the judge in Mr Gray’s favour.) He protested without success, and the truck was removed.[5]To get it released he had to pay £260 (£60 for the ticket and £200 for the removal). He made representations to Transport for London. They accepted his representations, and repaid the £260. But they asserted that the removal had been lawful. This is confirmed by TfL’s letter of 18th December 2007:
“The vehicle in question was monitored for 4 minutes (3 minutes is the usual time period and it was clear that no loading or unloading was taking place at this time. As a result, our agents were legally instructed to tow away the vehicle as a contravention had taken place.”
[6]Mr Gray was not satisfied. In the name of his company he issued a small claim in the county court against TfL and NCP. He sought a declaration that the removal of the vehicle was unlawful, and damages of £40 for a spoilt bunch of flowers and £176.25 for loss of use of the vehicle, and exemplary damages.[7]The claim was dismissed by HHJ Welchman, and on appeal by Jack J. It comes to this court with permission granted by Etherton LJ, following refusal by Richards LJ. Both thought there was an arguable issue of law. Etherton LJ, unlike Richards LJ, thought that a second appeal was justified. Although the amounts involved in this case were small, he thought that in others the consequences might be much more serious, for example for someone delivering perishable goods, or needing to fulfil a commercial commitment. (The claim for exemplary damages was dismissed by HHJ Welchman, for reasons which appear to me unimpeachable, and was not renewed on appeal before Jack J or in this court).

Statutory provisions

[8]The relevant statutory provisions are to be found in two Acts, the Road Traffic Regulation Act 1984 (the 1984 Act) and the Road Traffic Act 1991 (the 1991 Act), and orders and regulations made under them. Both have been subject to frequent amendment. We were told that the 1991 Act had signalled a major change (effective from 1993) in the overall approach to parking contraventions, moving from criminal to civil enforcement. In consequence the statutory provisions do not make easy reading. We are grateful for the expert and objective guidance offered by Miss Broadfoot, appearing for the first respondent. Fortunately there is no issue as to the provisions in effect at the relevant time.

Parking restrictions

[9]The red-route restriction was imposed under s 6(1) of the 1984 Act, and a GLA traffic order (GLA 2007 No 425). Under article 6 of the order, the restriction did not apply where – “the vehicle is stopped only for the purposes of loading or unloading that vehicle for as long as is necessary or for a period of 20 minutes, whichever is the less…”

Parking penalties

[10]Section 66 of the 1991 Act is headed 'Parking Penalties in London':
"66 (1) Where, in the case of a stationary vehicle in a designated parking place, a parking attendant has reason to believe that a penalty charge is payable with respect to the vehicle, he may – (a) attach a penalty charge notice to the vehicle; or (b) ……….. (2) For the purpose of this Part of the Act, a penalty charge is payable with respect to a vehicle, by the owner of the vehicle if – (a) the vehicle has been left – (i) otherwise than as authorised by or under any order relating to the designated parking place; or (ii) …." (a) attach a penalty charge notice to the vehicle; or (b) ……….. (a) the vehicle has been left – (i) otherwise than as authorised by or under any order relating to the designated parking place; or (ii) …."
[11]Schedule 6 to the same Act deals with subsequent procedure. If the penalty is unpaid after 28 days, the authority may serve a notice on the owner. The owner may make representations to the authority on any of six grounds, one of which is "that the alleged contravention did not occur" (Sched 6 para 2 (4)(b)). If this is not accepted there is a right of appeal to a parking adjudicator. In this case those procedures were not necessary, because the authority promptly accepted his representations and repaid the penalty.

Removal of vehicles

[12]Section 99 of the 1984 Act is headed “Removal of vehicles illegally, obstructively or dangerously parked, abandoned or broken down”. As the judge observed, its ambit is a good deal wider than illegal parking. It provides:
“s 99 (1) The Secretary of State may by regulations make provision for the removal of vehicles which have been permitted to remain at rest— (a) on a road in contravention of any statutory prohibition or restriction, or (b) on a road in such a position or in such condition or in such circumstances as to cause obstruction to other persons using the road or as to be likely to cause danger to such persons, or (c) on a road, or on any land in the open air, in such a position or in such condition or in such circumstances as to appear, to an authority empowered by the regulations to remove such vehicles, to have been abandoned without lawful authority, or which have broken down on a road.” (a) on a road in contravention of any statutory prohibition or restriction, or (b) on a road in such a position or in such condition or in such circumstances as to cause obstruction to other persons using the road or as to be likely to cause danger to such persons, or (c) on a road, or on any land in the open air, in such a position or in such condition or in such circumstances as to appear, to an authority empowered by the regulations to remove such vehicles, to have been abandoned without lawful authority, or which have broken down on a road.”
[13]One notes immediately an apparent contrast between (a) and (c). Under (a), at least on a literal reading, the issue is whether the vehicle has been permitted to remain in actual contravention of a statutory prohibition. By contrast, under (c) the issue is whether the position or condition of the vehicle are such that it appears to havebeen abandoned, not whether it has in fact been abandoned.[14]The relevant regulations are the Removal and Disposal of Vehicles Regulations 1986, as amended at various times. At the relevant time, paragraph 5A provided:
“5A (1) …. where …. a vehicle (a) has been permitted to remain at rest or has broken down and remained at rest on a road in Greater London in contravention of a prohibition or restriction contained in an order having effect under – (i) section 6 of the 1984 Act so far as the order designates any parking place; … a parking attendant acting on behalf of the local authority may, …., remove or arrange for the removal of the vehicle …..” (a) has been permitted to remain at rest or has broken down and remained at rest on a road in Greater London in contravention of a prohibition or restriction contained in an order having effect under – (i) section 6 of the 1984 Act so far as the order designates any parking place; … a parking attendant acting on behalf of the local authority may, …., remove or arrange for the removal of the vehicle …..”
[15]Again one notes that the pre-condition for removal, on the face of it, is whether there has been a contravention, not the reasonable belief of the parking attendant that there has been one.[16]We were told that a regulation in the form of 5A was first introduced in 1993 (SI 1993/1475 reg 3), at the same time as the relevant parts of the 1991 Act. In this connection, Miss Broadfoot referred us, by way of comparison, to a new regulation 5C introduced in March 2008 (after the incident with which we are concerned) relating to removal of vehicles in “civil enforcement areas” (as defined under the Traffic Management Act 2004). This provides for the removal of a vehicle where:
“ (a) a vehicle has been permitted to remain at rest on a road in a civil enforcement area for parking contraventions in England; and (b) a civil enforcement officer has… fixed a penalty charge notice to the vehicle or handed such a notice to the person appearing to him to be in charge of the vehicle.”
Though not directly relevant, this is of interest as showing an analogous context in which, unlike regulation 5A, the power to remove is expressly linked to the issue of the penalty charge notice. We have not been referred to the legislative background of this provision, and I offer no comment on it.[17]Section 101(1) of the 1984 Act provides for the “ultimate disposal” of vehicles removed under these powers. Section 101(4A) of the 1984 Act provides that, before a vehicle is disposed of under subsection (1), the owner may remove it on paying any penalty charge in respect of parking and the appropriate sum in respect of removal and storage. These provisions are supplemented by the 1991 Act. Section 71(1) provides that, on removal by an owner under section 101(4A), he is to be informed of his right to make representations and of his right to appeal to a parking adjudicator under section 72. By section 71(3) the representations may be on one or more of the grounds mentioned in subsection (4), which include:
"(a) that there were no reasonable grounds for the parking attendant concerned to believe that the vehicle had been permitted to remain at rest in the parking place in circumstances specified in section 66(2)(a)… of this Act"
So that takes one back to sub-section (2) in the parking ticket provisions (see para 8 above).

Comment

[18]We observe at once that there seems to be a mismatch between the two sets of provisions. The parking penalty scheme seems logical enough. The parking attendant may serve the notice if he has “reason to believe” that it is unlawfully parked. But if the owner can show that in fact there was no contravention, the ticket is cancelled and any penalty repaid.[19]The removal procedures do not at first sight exhibit the same logic. Rather they seem back-to-front. Reasonable belief by the parking attendant is enough to justify the imposition of a ticket, but not to justify removal. That is only justified if there is an actual contravention. On the other hand, if the owner can show later that there was no contravention the parking ticket is cancelled. But on the face of it, to get back the cost of removal he has to show, not merely that there was no contravention in fact, but that the parking officer had no reasonable grounds for thinking there was a contravention.[20]The latter is not an issue in the present case, because it seems that TfL as a matter of practice, if not strict law, are willing to repay the removal charge if it is shown that there was no contravention. They did so in this case. However, that leaves open the legality of the removal itself.

The judgments below

[21]Both judges saw the problem but felt able to get round it. HHJ Welchman (para 9) accepted the submission of counsel for TfL that the loading rights were an exception to the ordinary rule, and therefore there would be a contravention “unless the exception was made out”. Counsel had drawn a parallel with the Blue Badge scheme for disabled drivers. A disabled driver would not be able to rely on his right to park unless he displayed the badge. In the same way, it was said, in the absence of any indication on the truck that it was parked for loading or unloading, the parking attendant was entitled to treat it as unlawfully parked.[22]That analysis was not in terms adopted by Jack J. He dealt with the point very shortly:
“14. Paragraph 5A of the 1986 Regulations (which was added subsequently to 1986) has to be read in the context of section 71 of the 1991 Act. Taking them together paragraph 5A must be construed on the basis that if the parking attendant had reasonable grounds for believing that there was a contravention, the removal was lawful and the owner has no remedy. It is unfortunate that paragraph 5A was drafted as it was: the position could easily have been clearly stated. But taking the two together I do not think that any other conclusion is possible.”
Implicit in this reasoning, as I understand it, is the proposition that section 99 of the 1984 Act was to be reinterpreted in the light of the overall scheme resulting from the 1991 Act, including the limited appeal rights granted by section 71, and that regulation 5A had to be read in that context. He did not comment on, or indeed mention, the apparent contrast between paragraphs (a) and (c) of section 99(1).

The submissions in this court

[23]Mr Gray relies principally on the ordinary meaning of the regulation, and the contrast with s 99(1)(c). It is not therefore enough that it should appear to the parking officer that there has been a contravention. The contravention must be established. He says that there is good reason for a different approach to removal from that applying to parking tickets. Removal is a much more serious interference with the private property rights of the owner. (If necessary he relies on the protection for property rights under article 1 of the First Protocol to the ECHR.)[24]Furthermore, the tasks are entrusted to different people. Parking tickets are issued by Traffic Wardens. Vehicle removal is charged to private contractors. A parking ticket is the necessary first step to removal but is not sufficient in itself. In this case, by the time the removal was underway he had made clear that he was in the course of loading, and was lawfully parked. Instead of taking any steps to verify the position, the removal crew continued with removal, relying wrongly on the ticket, and without satisfying themselves that a contravention had in fact taken place. Unlike other authorities, which have a policy of “divorcing” the issue of PCNs and vehicle removal with a prescribed time interval, TfL risk exceeding their authority by “marrying” the two processes.[25]Miss Broadfoot for TfL adopts and expands Jack J’s reasoning. The words “in contravention” should be taken as meaning “reasonably considered to be in contravention”. Parliament’s intention to that effect is apparent when the regulation is read with section 71, which she says is part of a statutory scheme brought into effect at one time. To read it otherwise would make the scheme unworkable. As a matter of common sense, it must be for the officer on the ground to make a judgment, which is then sufficient to establish the legality of removal. It cannot have been intended to be left to be settled retrospectively by the county court. She submits that the scheme places a reasonable and well-understood burden on users to ensure that if they park in a loading/unloading bay, they make clear that they are indeed loading and unloading.[26]She refers to two authorities on section 99: i) Clark v Chief Constable of West Midlands [2002] RTR 405 (s 99(1)(c)). It was held that a car had been lawfully removed. The question under (c) was not whether it had actually been abandoned but whether it had been left in such a position that it “appeared” to have been abandoned (per Longmore LJ para 12). I added (para 19) that the relevant provision was directed “at the perception” of the constable, which under ordinary public law principles must be reasonable. This case, in my view, does not assist Miss Broadfoot’s argument. If anything it reinforces the contrast between (a) and (c). ii) Carey v Chief Constable of Avon [1995] RTR 405 (under s 99(1)(b)). This court held that the claimant was entitled to damages for the removal of his coach (which was also his home), from a residential road in which it had been parked for some weeks. It had been removed under s 99(1)(b) on the basis that it was in such a position as to cause an obstruction to persons using the road. Hutchison LJ (in the leading judgment) observed:
“this involves of course a judgment on the part of the police officer concerned, who must make an assessment of the extent to which that vehicle in that road constitutes an obstruction to users of that road”
(p 412). On the evidence, the officers had based their decision to remove the vehicle principally on the length of the time the vehicle had been there, and the fact that it was being lived in. They had not specifically considered whether it was obstructing other road users.[27]Although the present point was not directly in issue, the judgment in Carey does in my view provide some assistance to her argument. Legality of removal did not depend on whether objectively there was an obstruction. The court thought it obvious, even without any specific wording to that effect, that it would have been sufficient for the officer concerned to reach a considered judgement, based on his own assessment of the extent of the obstruction. The problem was that he had not asked the right question. As I understand the judgment, however, it would not take her all the way. It does not nullify the distinction between paragraph (c), on the one hand, and (a) and (b) and on the other. What is envisaged is not simply “appearance” or “reasonable belief”, but a considered judgment based on an assessment of all the circumstances, including whatever information is or should be reasonably available to the officer when authorising the removal.

Conclusion

[28]Even with Miss Broadfoot’s help, I am not confident that we have mastered all the intricacies of this statutory scheme. I would be reluctant in any event, in the absence of full legal argument on both sides, to go further than we need to decide this appeal on its own facts.[29]Her suggestion (following Jack J) that the provisions of the 1984 Act, and regulations under it, should be reinterpreted in the light of the 1991 Act was not supported by authority. I note the following in Bennion on Statutory Interpretation 5th Ed., Section 80 (p 293):
“Where a later enactment does not expressly amend (whether textually or indirectly) an earlier enactment which it has power to override, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication amends the earlier so far as is necessary to remove the inconsistency between them”
The commentary states:
“Statutory exposition Where the legal meaning of an enactment is doubtful, and a later enactment having power to override it is so worded as to show that the legislator treated it as having a particular meaning, this is said to be a statutory exposition of it. Whether statutory exposition is equivalent to implied amendment depends on whether the later enactment indicates an intention to clarify the meaning of the earlier one (thus serving as a declaratory enactment), or merely refers to it. In the latter case it is of persuasive authority only.”
I am, at best, doubtful whether the argument relating to the effect of the 1991 Act can be brought within this proposition.[30]Turning to the wording of the regulation, Mr Gray can fairly argue that it supports an objective approach to the question of contravention, as does the contrast between s 99(1)(a) and (c). As a practical matter, however, the view adopted by this court in Carey in relation to (b) can be said to make good sense, and can be applied equally to (a). Parliament is unlikely to have intended the legality of removal to be left in the air as an issue to be settled ultimately by the court. On that view, the scheme of the Act depends on the officer being able to make a reasonable judgment at the time. To that extent I see the force of Miss Broadfoot’s argument, although I would prefer not to reach a definite conclusion unless required to do so.[31]In any event, that would not be a complete answer to Mr Gray’s case. In my view, he is right to submit that the two processes – issue of a parking ticket and removal – are distinct, and require separate consideration. In most cases no doubt that would be immaterial. In this case, however, it was not. At the time of issuing the parking ticket, as is accepted, the officer had reason to believe there was a contravention. By the time the removal was under way, the position had changed. Mr Gray was asserting that he was in the course of loading. The information which led the authority later to accept his case would have been available to the officers concerned, had they been willing to listen. Instead of considering it, they allowed the removal to proceed in reliance on the issue of the parking ticket. TfL’s letter quoted above makes clear that the parking ticket in itself was considered sufficient authority also for removal. In my view that was wrong.[32]For that reason, I would allow the appeal and order that damages be paid in the agreed sum of £216.25 plus interest.

JACKSON LJ :

[33]I agree.

THE RT HON LORD NEUBERGER (MASTER OF THE ROLLS) :

[34]I also agree.