Free Traffic Legal Advice
General discussion => The Flame Pit => Topic started by: stamfordman on May 18, 2025, 12:36:59 pm
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"Entitled to find as he did" is an ambiguous term. In the TfL appeal/JR mentioned earlier, TfL sought to argue that the adjudicators were not entitled to misdirect themselves as to the law (were not entitled to make an error of law), whereas it was held that for the purposes of a review, they were merely not entitled to go outside the bounds of their authority (ultra vires).
Whether [binding] case law is old or not has no direct bearing on its applicability - although if it has become outdated in terms of what is and is not an accepted practice, then a court with the authority to do so may well revisit it (e.g. R v R).
As far as I can ascertain, the case law applicable to loading bays is potentially per incuriam as the more recent Divisional Court decision did not consider authorities that I arguably ought to have been referred to.
The applicable case law appears to have been set out in Bosworth (https://www.londontribunals.gov.uk/sites/default/files/keycases/Bosworth%20%26%20Others%20v%20LB%20Tower%20Hamlets.pdf)
Any judicial review of the watermelon case would likely consider the existing authorities and clarify what the intended meaning of loading is in law, and indicate what are findings of fact and degree that the appellate courts would not interfere with (assuming that they had been properly reached), and what the adjudicators ought to and ought not to consider when determining whether the exemption was made out.
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I'm suggesting that each case turns on its facts and given there is nothing in the legislation that defines loading we only have some case law (old I think) and adjudicator panel thinking to go on.
Within that it seems to me this adjudicator was entitled to find as he did and a judicial review would fail, and bringing a case on a watermelon for a palliative care patient would probably make the appellant a laughing stock.
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There appears to be inconsistency within the adjudicators - in this case the adjudicator invited the appellant to tell him that the boards were pre-ordered, and that was seemingly the deciding factor, whereas in the case that gave rise to this thread, pre-ordering was deemed not to make any difference.
The law has generally preferred certainty to the more nebulous concept of justice.
If the loading exemption applies to collecting (and paying for) pre-ordered items that could not easily be carried a significant distance that is a reasonably well defined pigeon-hole. I do not know the nature of the boards in question, but 4 boards sounds like something that you wouldn't want to drag half way across town. A watermelon, less so IMHO.
Where there is a reasonably well defined exemption, there will generally be ways to game the system to stretch the exemption - this is box ticking as opposed to weighing up the merits. If you can tick the relevant box you win, regardless of whether another case with no less merit would lose.
However, you seem to be suggesting that one could "legitimately" game the system for using the parking exemption to park up while making a phone call to pre-order the item. If pre-ordered is a relevant box to tick, using the loading exemption to collect and pay for the item would seem to qualify, but I would suggest that making the phone call would not - you cannot use the loading exemption for making the phone call.
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So one can go to the shop, from outside call and ask if they have watermelons and ask for one to be reserved... Sort of. But this is again Sean Stanton-Dunne.
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Case reference 2250090822
Appellant Jonathan Payne
Authority London Borough of Southwark
VRM LV18SKJ
PCN Details
PCN JK14373422
Contravention date 03 Dec 2024
Contravention time 08:56:00
Contravention location Shawbury Road
Penalty amount GBP 130.00
Contravention Parked in a loading place without loading
Referral date -
Decision Date 21 May 2025
Adjudicator Sean Stanton-Dunne
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons Mr Payne was scheduled for a personal hearing by video link on 30 April 2025 but did not attend and so the appeal was considered on the evidence presented.
Mr Payne's evidence showed that he was stopped in Shawbury Road to pick up 4 sheets of protection board from Leyland. A cash sale receipt for the purchase was submitted in evidence. There was no question, therefore, that the vehicle was stopped for loading purposes. There was an observation period of only 2 minutes before the PCN was issued at 8.56am and the sale for the protection board was transacted at 9.03am.
It was not, however, clear from the evidence whether the board was pre-ordered and there was no evidence as to the circumstances of the purchase. I adjourned the hearing to give Mr Payne an opportunity to provide this further evidence.
Mr Payne has attended the hearing today by video link and Mr Luke Warden has attended for the Council, also by video link. Mr Payne has explained that he is a regular customer at Leyland which he says is directly opposite the road from where he parked. He says that he telephoned Leyland before going there to make sure that the board was in stock and that he asked for the 4 sheets to be put aside. Mr Payne says that he went into Leyland only to collect and pay for the board.
I am satisfied from the evidence of Mr Payne that he was collecting pre-ordered goods and that the vehicle was properly stopped for loading purposes.
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JR or not, a party would still have to apply for a review first.
Please explain?
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JR or not, a party would still have to apply for a review first.
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Yes but where is this stated in law.
in the principle of de minimis?
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If there is already a binging authority on the narrow point, there would be no need for a JR.
If you think there needs to be an existing binding authority for a poster to express an opinion to which way a JR would go, I suggest that you keep such thoughts to yourself.
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As an outsider, going shopping is not loading.
Collecting a pre-ordered item is loading.
Paying for and collecting for a pre-ordered item is loading.
The argument that selecting and paying for a single item would take no longer than paying for and collecting a pre-ordered item and therefore amounts to the same thing equates the specific exemption for loading to an exemption for loading or anything else that takes a similar amount of time.
Yes but where is this stated in law.
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As an outsider, going shopping is not loading.
Collecting a pre-ordered item is loading.
Paying for and collecting for a pre-ordered item is loading.
The argument that selecting and paying for a single item would take no longer than paying for and collecting a pre-ordered item and therefore amounts to the same thing equates the specific exemption for loading to an exemption for loading or anything else that takes a similar amount of time.
It's like saying that if a proficient cyclist can cycle at 30mph on a non-mechanically propelled vehicle, and does not require a licence or insurance because they are only required for mechanically propelled vehicles, anyone can ride a moped without a licence or insurance because they don't go over 30mph.
Also, the High Court has a propensity for interpreting ambiguous, and also not so ambiguous, terms in favour of the establishment. IMHO the "interests of justice" point was the only thing that Swift J got right in that judgment (and he had plenty of authorities to spare on that point).
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That the decision was wrong in law.
Yes I realise that but why.
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That the decision was wrong in law.
The only basis for the review failing IMO was that the 'in the interests of justice' grounds do not encompass errors in applying the law, such matters are to be referred for determination to JR.
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And Citrullus lanatus doesn't have to be preordered.
IMO, if this decision was judicially reviewed then you'd find that Merton would succeed.
Something's got to give when the body charged with adjudication makes decisions at variance with the law(and IMO it is) and then cites the quoted case as a means of avoiding righting what is a clear wrong as a result of which the already overloaded courts are left to sort out the mess and the council taxpayers to fund the bill.
On what grounds do you think a judicial review would succeed.
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And Citrullus lanatus doesn't have to be preordered.
IMO, if this decision was judicially reviewed then you'd find that Merton would succeed.
Something's got to give when the body charged with adjudication makes decisions at variance with the law(and IMO it is) and then cites the quoted case as a means of avoiding righting what is a clear wrong as a result of which the already overloaded courts are left to sort out the mess and the council taxpayers to fund the bill.
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This was filmed after a rather large fish dish. 8) Can't wait to get back to the Plane Tree.
https://youtube.com/shorts/z1meJoYyQKw
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If he'd got 4 tins of paint, he would also have fork handles? :)
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Good job it wasn't a tin of glue, then the EA would have been in a sticky situaion
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At least a tin of paint has a handle.
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I think members will enjoy this London tribunal case from yesterday that was reviewed. Includes a ticking off of Merton and the Latin for watermelon.
And Citrullus lanatus doesn't have to be preordered.
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Case reference 2250071613
Appellant Mazhar Ali
Authority London Borough of Merton
VRM LG20ZTM
PCN Details
PCN MT70991185
Contravention date 03 Nov 2024
Contravention time 12:00:00
Contravention location West Barnes Lane
Penalty amount GBP 130.00
Contravention Parked restricted street during prescribed hours
Referral date -
Decision Date 09 Apr 2025
Adjudicator Sean Stanton-Dunne
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons Mr Ali was scheduled for a personal hearing by video link today but he has not attended and so the appeal is being decided on the evidence presented.
The CEO's images show that Mr Ali's car was stopped on double yellow lines, indicating a continuous no parking and no waiting restriction. Mr Ali has explained that he stopped to buy a watermelon for his mother who is in palliative care and was suffering with mouth ulcers.
The CEO observed the car for only two minutes before issuing the PCN. I accept Mr Ali's evidence. The purchase of a single item can fall within the exemption for loading. There is no distinction between (i) picking up an order and paying for it at the checkout and (ii) picking up an item and paying for it. A watermelon is normally sizeable and weighty. I am satisfied that the loading exemption can apply in this case in the same way that it might apply to buying a tin of paint.
Decision Date 17 May 2025
Adjudicator Jack Walsh
Previous decision Appeal allowed
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons The enforcement authority (EA) seeks a review of the decision of Adjudicator Mr. Stanton-Dunne on 9 April 2025 to allow the appellant's appeal. The ground upon which the EA seeks a review is that the 'interests of justice' require it. The EA says, in effect, that the Adjudicator made an error of law by finding that the 'loading' exemption applied in circumstances in which the vehicle was parked whilst Mr. Ali selected a product - a watermelon - and paid for it, before then loading it into his vehicle. The EA says that the time spent selecting and paying for a product cannot be time during which the vehicle was engaged in loading or unloading such that the exemption can apply.
The relevant parts of the Adjudicator's decision are as follows:
"The purchase of a single item can fall within the exemption for loading. There is no distinction between (i) picking up an order and paying for it at the checkout and (ii) picking up an item and paying for it. A watermelon is normally sizeable and weighty. I am satisfied that the loading exemption can apply in this case in the same way that it might apply to buying a tin of paint."
It is not - nor could it be - suggested by the EA that it did not have a fair opportunity to present its case to the tribunal, or that the Adjudicator simply overlooked some evidence or submissions. What the EA appears to be saying is that, in finding that the loading/unloading exemption applied, he either misdirected himself as to the law or reached a decision that was not reasonably open to him. It was, say the EA in effect, a decision that, in public law terms, is either vitiated by an error of law or was Wednesbury unreasonable.
The EA also adds in its request for a review:
"If the Adjudicator does not feel they are in a position to be able to reconsider their original
decision then the council ask where it states in legislation that loading and/ or unloading
includes the time to pick out and purchase items."
I find this to be a somewhat disingenuous remark. The EA well knows that the loading/unloading exemption is not to be found in legislation, and I do not consider this purported request to be directed to the relevant legislation to be genuine. That rather sarcastic addition to the application for a review is not to the credit of the EA.
The answer to this application is straightforward. In R(TfL v. London Tribunals (Environment and Traffic Adjudicators) [2023] EWHC 2889 (Admin) the High Court considered the power of this tribunal to entertain reviews of its own decisions on the very ground selected by the EA in this case, namely the 'interests of justice'. The judge, Mr. Justice Swift, applied dicta in Trimble v Super Travel Ltd. [1982] ICR 440, which concerned the powers of the Employment Tribunal (ET). In Trimble, the Employment Appeal Tribunal held that the ET could only review one of its decisions 'in the interests of justice' where "due to an oversight or to some procedural occurrence one or other part[y] can with substance say that he has not had a fair opportunity to present his argument on a point of substance".
Swift J in TfL held, in circumstances in which the review sought by TfL was also on the basis that the decision of the original adjudicators was wrong in law:
"26. That same principle of finality [as in Trimble] means that the Chief Adjudicator was wrong to conclude that a review on the interests of justice ground could consider the legality of an adjudicator’s decision applying the principles relevant on an application for judicial review. Properly understood, paragraph 12 of Schedule 1 to the Appeal Regulations provides no such jurisdiction. Decisions of adjudicators are susceptible to judicial review. If the losing party wishes to challenge a decision on the basis it was wrong in law the correct route is by application for judicial review to this court, not an application under paragraph 12 for a review on the interests of justice ground.
27. In this case the Chief Adjudicator ought to have refused Transport for London’s application for review under paragraph 12 because the interests of justice ground for review does not permit review on the basis that the decision in question was wrong in law..."
The position is therefore clear, based on the above paragraphs in a decision of the High Court by which - whether I agree with it or not - I am bound. It is simply not open to me to entertain this application for a review on the basis put forward by the EA. Rather, its remedy is to apply for judicial review.
I should also add that, even if I had the power to review the decision, I would not have exercised my discretion to do so. It is unlikely that Mr. Stanton-Dunne, a very experienced adjudicator of this tribunal, did not have in mind when making the decision the long-standing principles from the case law on the loading/unloading exemption. The time spent on selecting and purchasing the watermelon can only have been relatively brief in the context of the overall time for which the vehicle was waiting. It is likely to have been considerably less than the time spent on some of the types of activities ancillary to actual loading that have been permitted in the case law (see Jane Packer Flowers Limited v. LB Westminster (Case Reference 1960215927) and the cases referred to therein). It seems to me that Mr. Stanton-Dunne was entitled to take judicial notice of the fact that fruits of the species Citrullus lanatus can indeed be "sizeable and weighty" so as to justify, in principle at least, the use of the loading/unloading exemption.
On either basis, I decline to interfere with the decision.
I cannot leave this case without commenting on what appears to be the rather odd decision of the civil enforcement officer not to issue the PCN for parking on a road with one or more wheels other than on the carriageway. That contravention is very clearly made out and, with its much more limited loading/unloading exemption, would likely have avoided the debate that has occurred in this appeal and review application.