Case reference 2240512370
ETA Register of Appeals
Register kept under Regulation 20 of the Road Traffic (Parking Adjudicators) (London) Regulations 1993, as amended and Regulation 17 of the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022.
Case Details
Case reference 2240512370
Appellant Franklin Durand-Vibert
Authority London Borough of Wandsworth
VRM WF14 TWA
PCN Details
PCN WA91071794
Contravention date 19 Sep 2024
Contravention time 13:24:00
Contravention location Clapham Common North Side JCT. Stormont Road
Penalty amount GBP 130.00
Contravention Performing a prohibited turn
Referral date -
Decision Date 09 Jan 2025
Adjudicator Edward Houghton
Appeal decision Appeal allowed
Direction
cancel the Penalty Charge Notice.
Reasons
I heard these is Appeals by telephone speaking to Mr Murray-Smith representing the Appellant and Mr Inge, an officer of the Council. Having done so I reserved my decision.
The grounds of appeal are as set out in Mr Murray--Smith’s detailed skeleton argument and the Tribunal decisions there cited. These are, in bare summary, that the PCN is defective in that it incorrectly states that a Charge Certificate may ne issued after the expiry of 28 days from the date of the notice; whereas the Regulations require 28 days from the date of service of the notice. His second ground is that there is no evidence that the required authority to enforce has been given by TfL – something that is required on what is a GLA road.
I will take the second point first. Section 4 of London Local Authorities and Transport for London Act 2003 that a Council may not exercise the power to enforce on a GLA road unless they have obtained the written consent of TfL. The Council does not challenge that as a result of the Designation cited by Mr Murray-Smith both the roads in question in the present case were GLA roads. In response to Mr Murray-Smiths submissions the Council has produced a letter dated the 19th September2011 giving consent. However as Mr Murray -Smith was quick to point out, the consent is expressed to run only for the duration of an Experimental Traffic Order which has long since expired. Mr Inge stated that he believed that further correspondence could be obtained but I did not consider it in the interests of justice to adjourn the hearing for that purpose. The Council was clearly on notice of what it was being required to produce and ought to have been in a position to produce the necessary consent if they had it. If follows that on the evidence I am unable to be satisfied that the Council had the power to issue a PCN at this location and the Appeals must be allowed on that ground.
The first ground raises a more difficult issue and one which has on many occasions been the subject of decisions by Adjudicators. The difficulty arises from what I do not shrink from calling sloppy drafting of the legislation which requires a PCN to state that the penalty may be increased if not paid within 28 days from the date of the Notice whereas additional requirements in the Schedule prevent the issue of a Charge Certificate within 28 days of the date of service of the Notice. My learned colleague Mr Walsh sets out the difficulty with clarity and precision in his decision in Mohammad Ahmed v City of London (2240382490, 14 December 2024) as follows:-
“If the penalty is not paid within the period of 28 days from the date of the penalty charge notice (PCN), then may be payable at the increased amount. A charge certificate may be served if, within the period of 28 days from the date of service of the PCN, payment is not made and no representations have been made. The legislation creates an odd anomaly in that there is a period (likely to be a couple of days or so) within which the penalty is now payable at the increased amount, but the enforcement authority (EA) is not yet empowered to serve a charge certificate because the time within which a recipient is permitted to make representations has not yet elapsed. There is, however, a clear distinction between the point in time when the increased penalty is payable and the point in time when the EA is empowered to serve a charge certificate”.
The Council in the present case can point to the fact that the PCN states what it is required to state under s 4; and the real question in this and other cases is whether the inclusion of other information not required by virtue of S4 renders the PCN either non-compliant, or otherwise non-enforceable, if that additional information is not correctly stated. As Mr Walsh noted, S4 does not require any reference to a charge certificate.
If the additional information were positively to contradict or undermine the matters specifically required to be stated by S4 there would in my view be no difficulty, One would
find that, as a result, the PCN did not contain the information required by that Section. In the present case, however that is not the position. The wording in issue is as follows:- “If the Penalty Charge is not paid before the end of the 28 day period the charge may increase to £195 and we may serve a Charge Certificate seeking payment of the increased amount”. “The 28 day period “clearly refers back to date of the notice previously mentioned ; and the statement therefore if anything reinforces the s4 requirement rather than contradicting it.
One is therefore left to decide whether the mis-statement as to when the Charge Certificate may be issued is so grave or misleading as to render the enforcement of a penalty impossible on the basis of a collateral challenge. The wording in this case does in my view amount to such a mis-statement “and we may serve a Charge Certificate” being given its natural meaning that one may be served at that point i.e the expiry of the 28 day period.
The point has been raised before numerous Adjudicators with only one dissenting voice. The decision in the present case is of course my own, but where there is a substantial body of decisions on the point, I naturally give the views of so many colleagues some weight and I find myself in agreement with them, particularly the careful decision of Mr Walsh. Motorists are entitled to know exactly where they legally stand when it comes to enforcement procedures.
I would therefore in addition allow the Appeal on the first of Mr Murray-Smiths grounds. The Council might be wise to consider revising its wording to make it clear the correct point at which a Charge Certificate may be served.
PCN WA91081506
Contravention date 20 Sep 2024
Contravention time 14:14:00
Contravention location Clapham Common North Side JCT. Stormont Road
Penalty amount GBP 130.00
Contravention Performing a prohibited turn
Referral date -
Decision Date 09 Jan 2025
Adjudicator Edward Houghton
Appeal decision Appeal allowed
Direction
cancel the Penalty Charge Notice.
Reasons
I heard these is Appeals by telephone speaking to Mr Murray-Smith representing the Appellant and Mr Inge, an officer of the Council. Having done so I reserved my decision.
The grounds of appeal are as set out in Mr Murray--Smith’s detailed skeleton argument and the Tribunal decisions there cited. These are, in bare summary, that the PCN is defective in that it incorrectly states that a Charge Certificate may ne issued after the expiry of 28 days from the date of the notice; whereas the Regulations require 28 days from the date of service of the notice. His second ground is that there is no evidence that the required authority to enforce has been given by TfL – something that is required on what is a GLA road.
I will take the second point first. Section 4 of London Local Authorities and Transport for London Act 2003 that a Council may not exercise the power to enforce on a GLA road unless they have obtained the written consent of TfL. The Council does not challenge that as a result of the Designation cited by Mr Murray-Smith both the roads in question in the present case were GLA roads. In response to Mr Murray-Smiths submissions the Council has produced a letter dated the 19th September2011 giving consent. However as Mr Murray -Smith was quick to point out, the consent is expressed to run only for the duration of an Experimental Traffic Order which has long since expired. Mr Inge stated that he believed that further correspondence could be obtained but I did not consider it in the interests of justice to adjourn the hearing for that purpose. The Council was clearly on notice of what it was being required to produce and ought to have been in a position to produce the necessary consent if they had it. If follows that on the evidence I am unable to be satisfied that the Council had the power to issue a PCN at this location and the Appeals must be allowed on that ground.
The first ground raises a more difficult issue and one which has on many occasions been the subject of decisions by Adjudicators. The difficulty arises from what I do not shrink from calling sloppy drafting of the legislation which requires a PCN to state that the penalty may be increased if not paid within 28 days from the date of the Notice whereas additional requirements in the Schedule prevent the issue of a Charge Certificate within 28 days of the date of service of the Notice. My learned colleague Mr Walsh sets out the difficulty with clarity and precision in his decision in Mohammad Ahmed v City of London (2240382490, 14 December 2024) as follows:-
“If the penalty is not paid within the period of 28 days from the date of the penalty charge notice (PCN), then may be payable at the increased amount. A charge certificate may be served if, within the period of 28 days from the date of service of the PCN, payment is not made and no representations have been made. The legislation creates an odd anomaly in that there is a period (likely to be a couple of days or so) within which the penalty is now payable at the increased amount, but the enforcement authority (EA) is not yet empowered to serve a charge certificate because the time within which a recipient is permitted to make representations has not yet elapsed. There is, however, a clear distinction between the point in time when the increased penalty is payable and the point in time when the EA is empowered to serve a charge certificate”.
The Council in the present case can point to the fact that the PCN states what it is required to state under s 4; and the real question in this and other cases is whether the inclusion of other information not required by virtue of S4 renders the PCN either non-compliant, or otherwise non-enforceable, if that additional information is not correctly stated. As Mr Walsh noted, S4 does not require any reference to a charge certificate.
If the additional information were positively to contradict or undermine the matters specifically required to be stated by S4 there would in my view be no difficulty, One would find that, as a result, the PCN did not contain the information required by that Section. In the present case, however that is not the position. The wording in issue is as follows:- “If the Penalty Charge is not paid before the end of the 28 day period the charge may increase to £195 and we may serve a Charge Certificate seeking payment of the increased amount”. “The 28 day period “clearly refers back to date of the notice previously mentioned ; and the statement therefore if anything reinforces the s4 requirement rather than contradicting it.
One is therefore left to decide whether the mis-statement as to when the Charge Certificate may be issued is so grave or misleading as to render the enforcement of a penalty impossible on the basis of a collateral challenge. The wording in this case does in my view amount to such a mis-statement “and we may serve a Charge Certificate” being given its natural meaning that one may be served at that point i.e the expiry of the 28 day period.
The point has been raised before numerous Adjudicators with only one dissenting voice. The decision in the present case is of course my own, but where there is a substantial body of decisions on the point, I naturally give the views of so many colleagues some weight and I find myself in agreement with them, particularly the careful decision of Mr Walsh. Motorists are entitled to know exactly where they legally stand when it comes to enforcement procedures.
