Shiva Ltd v Transport for London & Anor [2010] EWHC 3171 (QB)

Case No CC/2010/0498[2010] EWHC 3171 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/12/2010
Before
MR JUSTICE JACK
Between
SHIVA LIMITEDAppellant/ClaimantTRANSPORT FOR LONDONRespondent/First DefendantNSL LIMITEDSecond Defendant
Mr Russell Gray, director, representing Shiva LimitedMr Aaron Walder (instructed by Transport for London) for the First DefendantHearing Hearing date: 1 December 2010
JudgmentMr Justice Jack :
[1]On Sunday 16 December 2007 at about 2.30 in the afternoon a Toyota pick-up belonging to Shiva Ltd and driven by Shiva’s alter ego, Mr Russell Gray, was parked outside 108 Shoreditch High Street, London, E1. The road was a ‘red route’, and the vehicle was in a bay where parking was permitted for loading and unloading with a maximum stay of 20 minutes. A parking attendant observed the vehicle and seeing no sign of loading or unloading over a period of 4 minutes issued a penalty charge notice, commonly called a parking ticket, and arranged for the removal of the vehicle. Mr Gray emerged to find that the notice had been issued and fixed to the vehicle and its removal was in train. It was removed and he had to pay £60 in respect of the notice and £200 in respect of the removal to get it released. He made representations about that and he was in due course repaid these sums. But he was not satisfied. On 20 December 2007 Shiva Ltd issued proceedings against Transport for London and NCP Services Ltd. NCP Services Ltd act as agents of Transport for London in the enforcement of parking restrictions. Shiva claimed a declaration that the removal of the vehicle was unlawful and claimed damages in the sum of £40 for spoilt flowers and £176.25 for loss of use of the vehicle. Although the claim was allocated to the small claims track it was tried by a circuit judge, HHJ Welchman, on 3 August 2010. The claim was dismissed. Shiva now appeal against that decision by permission of Eady J. granted on 7 October 2010.[2]It is common ground that the parking attendant had reason to believe that a penalty charge was payable because he had seen no sign of loading or unloading during the period he had observed the vehicle. The minimum period of observation in accordance with the relevant instruction was then 3 minutes. It is now 5 minutes. It is also common ground that Mr Gray had in fact parked for the purpose of loading. Mr Gray accepts that the attendant was entitled to issue a penalty charge notice. He disputes that there was any right to remove the vehicle.[3]The legislation relating to penalty charges is separate to that relating to the removal of vehicles. There are similarities and differences. Although I am only concerned with the second, it is appropriate also to consider the first.[4]Part II of the Road Traffic Act 1991 is headed ‘Traffic in London’. Section 66, titled ‘Parking Penalties in London’, provides :
“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) …. (b) …. (c) ….”
Subsection (3) provides what the notice must state. Subsection (7) provides that Schedule 6 to the Act shall have effect with respect to penalty charges, notices to owners and other matters supplementing the provisions of the section. (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) …. (b) …. (c) ….”[5]The scheme of Schedule 6 is as follows. Paragraph 1 provides for the London authority to serve a notice on the owner if the penalty charge issued under section 66 is unpaid after 28 days. By paragraph 2 the owner may make representations to the authority serving the notice on any of six grounds, one of which is “that the alleged contravention did not occur” – paragraph 2 (4)(b). It is then the duty of the authority to consider the representations and to serve notice of their decision whether they accept that the ground in question has been established. Paragraph 3 provides for cancellation of the notice given under paragraph 1 where the authority accepts that the ground has been established. Paragraph 4 covers the position where the authority does not accept this. Paragraph 5 enables the owner to appeal to a parking adjudicator against an authority’s decision that a ground is not established.[6]A penalty charge is only payable if one of the situations set out in section 66 (2) applies. As it is accepted that Mr Gray was loading, the charge was not payable. But it is also clear that the route by which it might be established by Mr Gray that it was not payable must be that set out in Schedule 6. It may well be that the authority will consider representations which are made prior to the serving of a notice as provided for by paragraph 1 of Schedule 6. If so, that is a matter of administrative convenience.[7]I turn to removal. Section 99 of the Road Traffic Regulation Act 1984 is headed ‘Removal of vehicles illegally, obstructively or dangerously parked, abandoned or broken down.’ So it is a good deal wider than illegal parking. It provides that regulations may be made for the removal of vehicles which are inter alia ‘on a road in contravention of any statutory prohibition or restriction’. The relevant regulations are the Removal & Disposal of Vehicles Regulations 1986. They have been amended a number of times since first introduced. Paragraph 5A introduced by amendment, provides that :
“5A (1) …. where …. a vehicle (a) has been permitted to remain 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; or (ii) …. (iii) …. (b) …. (c) …. a parking attendant acting on behalf of the local authority may, …., remove or arrange for the removal of the vehicle …..”
Section 6 of the 1984 Act provides, inter alia, for the making of parking restrictions. (a) has been permitted to remain 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; or (ii) …. (iii) …. (b) …. (c) …. a parking attendant acting on behalf of the local authority may, …., remove or arrange for the removal of the vehicle …..”[8]It is to be noted that paragraph 5A does not provide that where the parking attendant has ‘reason to believe’ that a contravention has occurred he may arrange for the vehicle’s removal. That is the wording used in respect of the issuing of a penalty charge notice in Section 66(1) of the 1991 Act. The paragraph provides that where a contravention has occurred, the vehicle may be removed. This is the nub of Mr Gray’s argument.[9]One has to go next to section 101(1) of the 1984 Act. This enables an authority to dispose of a vehicle which appears to it to have been abandoned and which has, inter alia, been removed pursuant to regulations made under section 99. I think that the car appearing to be abandoned and removal are not necessarily coterminous. So where a vehicle is removed and is not later collected and so appears abandoned, the subsection will apply.[10]Next, 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.[11]Then section 71(1) of the 1991 Act provides that on a removal by an owner under section 101(4A) the owner shall be informed of his right to make representations and of his right to appeal to a parking adjudicator under section 72. Section 71(3) provides that any person to whom section 71(1) applies may make representation on one or more of the grounds mentioned in subsection (4). It does not say shall only be entitled to make representations on those grounds, but that is clearly the intention. The first ground in subsection (4) is :
“(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), (b) or (c) of this Act”
Section 66(2)(a) is the relevant provision here. So in contrast with the right to make representations in respect of a parking charge on the basis that ‘the alleged contravention did not occur’, the representation in respect of removal has to be on the basis that there were no reasonable grounds for the parking attendant to think that the alleged contravention had occurred. Where an authority does not accept that a ground on which representations were made under the section has been established, section 72 gives a right of appeal to the parking adjudicator.[12]Mr Gray suggested that, in practice, if it is established that there was no parking contravention the removal fee would be remitted by Transport for London, as happened in his case. He said that an owner was not in practice required to establish that the parking attendant had no reasonable grounds to believe that there was a contravention. That may or may not be so. But the wording of the Act is clear : that is the limited right which is given to an owner. The reason, I suspect, is that where a removal has taken place costs have been incurred, where as with a penalty charge only the charge is in issue.[13]As it is accepted that the parking attendant did here have reasonable grounds for believing that there was a contravention, Shiva Ltd was not in fact entitled to the return of the charge for removal.[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.[15]A further argument is that the legislation provides a complete scheme and that all an owner who has his vehicle wrongly removed is entitled to is the return of what he has paid. Mr Gray postulated the case of a van carrying a load of valuable fish which was spoiled in consequence of the van being wrongly removed, saying the owner must have a remedy to recover its value. I am satisfied that where a parking attendant had reasonable grounds to believe that there was a contravention of a parking restriction the owner would indeed have no remedy. That is the effect of the legislation. I do not need to decide what the position would be if the parking attendant did not have such reasonable grounds. One is there getting close to bad faith, though of course the attendant might think in good faith that he had such grounds. I did not hear submissions as to these situations.[16]The appeal must be dismissed.[17]As the claim was allocated to the small claims track the court has only a power to make an order for costs in respect of fixed costs, including in relation to the costs of an appeal : CPR 27.14(2). So I make no order for costs here.