Neil Herron
Zonal Restrictions
Neil Herron is a businessman in Sunderland who campaigned against restrictions in a Controlled Parking Zone (CPZ) there. Such zonal restrictions (they also apply to 20 mph speed limits) involve signs at each entrance to the zone and then further, more limited signs, across the zone.
Key to these schemes is that the subsidiary signs throughout the zone may not individually provide full details of the restrictions, but the motorist has been put on notice of them by the signs at the zone's entrance. Their Achilles heel is that the legislation specifies what must be on subsidiary signs and relationships between them, e.g. the maximum distance between signs. It is hard to ensure that these are satisfied everywhere across the zone.
Neil Herron's Campaign
As the judgment in the Court of Appeal explained:
16. The Appellants are both based in the City of Sunderland. The First Appellant is a campaigner against parking restrictions. The Appellants were served with 55 penalty charge notices relating to various parking contraventions alleged to have been committed within the CPZ...
17. The appeals to the Parking Adjudicator were on numerous grounds, and voluminous evidence was put before him. There was, and is, no challenge to the designation of the Sunderland CPZ as a CPZ. The only ground now relevant was that there were irregularities in the signage in the Sunderland CPZ, namely that there were signs that did not comply with the statutory specification or that the requisite signs were lacking, so that it could not be said that every part of every road in the CPZ had been marked with one or more of the road markings listed in regulation 4 of the TSRGD.
Adjudication
Dismissing the appeal against the PCNs, the adjudicator, Mr Keenan wrote
19. ... Looking therefore at the CPZ as a whole the absence of a yellow line, the fact that the single stretch of road had not been marked, or that some of the bays, taxi, disabled, bus-stops, etc had not been correctly marked, should be considered trivialities which could not mislead a driver who parked on a clearly marked restriction. I am of the view that applying that decision the CPZ in Sunderland stands and that contraventions against the TROs in particular streets should be considered on an individual basis within the CPZ depending upon the signings and linings where the vehicle was actually parked.
...
... I remain of the view that a motorist driving into an area which is a CPZ will be correctly notified of that by the entry signs and will know that there are restrictions in place for parking during the hours stated upon that. If the motorist then chooses to park on a yellow line he or she must expect a contravention to have occurred and if the motorist parks in a bay then he or she should abide by the restrictions and timings indicated on any plate relevant to that bay.
adding
In the event the Appellant in this case is well aware of the restrictions imposed by the CPZ and in my view in the majority of cases has deliberately parked his vehicle to ensure the issue of a PCN so that he can challenge the validity of the CPZ as has been the case in these appeals.
Judicial Review
The Appellants took the case to judicial review. Here they introduced a new reason why the Sunderland CPZ was invalid: within the CPZ there were pedestrian crossings with zigzag lines, which meant that not every part of every road within it was marked as stipulated in regulation 4.
Bean J dismissed the claim for judicial review, writing:
23. In my judgment regulation 4 on its proper construction means that every part of every road in a CPZ, other than a parking bay, must be marked with a single or double yellow line (with or without the "loading and unloading" equivalents), except where an alternative parking prohibition is marked out such as that imposed by the zig-zags on the approach to a pedestrian crossing. Furthermore, I consider that any non-compliance, whether accidental or (if I am wrong on the previous point) arising from the presence of an alternative parking prohibition, is immaterial if it is too far from the location of the particular motorist's contravention to have led him or her into error.
Court of Appeal
Finally, Mr Herron and Parking Appeals Ltd took the case to the Court of Appeal: R (Neil Herron et al) v The Parking Adjudicator (https://www.bailii.org/ew/cases/EWCA/Civ/2011/905.html) 2011 [EWCA] Civ 905.
At the Court of Appeal the various parties each put forward their submissions:
- Appellants: while accepting that there could be de minimis exceptions to strict observance of the regulations regarding zonal restrictions for a CPZ, those which the adjudicator had found exceeded any de minimis allowance
- Adjudicator: even viewed cumulatively, the exceptions were trivial, and therefore within the de minimis exception
- Sunderland: the ultimate question was: did the traffic signs convey adequate information as to the effect of the parking restriction at the time and place at which the PCN had been issued? A defect in signage in a CPZ remote from the parking infringement could not affect the question whether the infringement had been committed.
Judgment
Burnton LJ (with whom Aikens LJ and Sir David Keene agreed) wrote
28. In my judgment, [Sunderland's] submissions are essentially correct.
. . .
35. It has long been recognised that the enforceability of a TRO requires that adequate notice of the applicable restriction is given to the road user. This principle is derived from the duty imposed by Regulation 18 of [LATOR 1996]. In Macleod v Hamilton 1965 SLT 305 Lord Clyde said, at 308
It was an integral part of the statutory scheme for a traffic regulation order that notice by means of traffic signs should be given to the public using the roads which were restricted so as to warn users of their obligations. Unless these traffic signs were there accordingly and the opportunity was thus afforded to the public to know what they could not legally do, no offence would be committed. It would, indeed, be anomalous and absurd were the position otherwise.
Lord Migdale said, at 309
... the order is not effective unless and until the council complies with Regulation 15(c) and erects road signs at the locus. Signs were erected but they were not the proper ones nor were they clear.
The regulation to which Lord Migdale referred was in the same terms, so far as material, as Regulation 18 of [LATOR 1996].
36. That principle was approved and applied by the Divisional Court in James v Cavey [1967] 2 QB 676. Giving a judgment with which the other members of the court [Ashworth and Widgery JJ] agreed, Winn LJ said:
regulation 15, by sub-paragraph (c) … [prescribed] that the authority should take forthwith
"all such steps as are reasonably practicable to cause to be erected on or near to the said roads traffic signs in such positions as the local authority may consider to be requisite" - and here come the operative words in my opinion - "for the purpose of securing that adequate information as to the effect of the order is given to persons using the said roads …"
The authority should take all such steps as are reasonably practicable for the purpose of securing that adequate information is given to persons using the said roads.
The short answer in my view which requires that this appeal should be allowed is that the local authority here did not take such steps as they were required to take under that regulation. They did not take steps which clearly could have been taken and which clearly would have been practicable to cause adequate information to be given to persons using the road by the signs which they erected. …
See too R (Oxfordshire C.C.) v. Bus Lane Adjudicator [2010] EWHC 894 (Admin).
37. Applying this principle, the question for the Adjudicator was whether the local authority had taken steps to secure that adequate information was conveyed to the Appellants as to the parking restrictions that they had infringed. The definition in regulation 4, and whether the roads in the CPZ had been signed as it envisages, are relevant to that question. Provided in substance the requirements of the definition are satisfied, the CPZ is valid. The test for invalidity is not "Are the irregularities trivial?", but whether there is substantial compliance with the statutory definition.
. . .
39. There is authority involving the offence of failing to comply with traffic signs in which a stricter approach has been taken. In Davies v Heatley [1971] R.T.R. 145, the Divisional Court held that the offence had not been committed where the sign in question did not comply with the statutory specification, even though the magistrates had held that the sign was clearly visible and recognisable, and could have left the appellant in no doubt as to its nature. However, in Cotterill v Chapman [1984] R.T.R. 73, a trivial departure from the statutory specification was held not to have invalidated the sign or to have exculpated the defendant. That decision was followed more recently in Cannadine v DPP [2007] EWHC 383 (Admin).
40. The explanation of Davies v Heatley may be that the offence of failing to comply with a traffic sign requires that the sign is the statutory sign, so that anything other than a trivial departure from the specification results in the sign not being a traffic sign. The offences in the present case were not such offences. The present appeals concern infringements of parking restrictions that were undoubtedly validly imposed. I add, however, that I detect in the judgments in Cotterill v Chapman and the cases following it an understandable reluctance to follow Davies v Heatley, and it is difficult to reconcile the decision in that case with the modern approach to statutory interpretation exemplified by Soneji. Indeed, it is difficult to see what test should be applied in order to decide whether an irregularity is trivial other than: could it have misled a road user as to the significance of the road sign? I would therefore reserve my judgment as to whether Davies v Heatley should be followed today in a case in which the defendant could not have been misled by the irregularity in the road sign in question.
41. An apparently strict approach was followed in Hassan v DPP [1992] R.T.R. 209. However, in that case there had been no sign plate displaying the times of restricted parking. That was a failure to provide adequate information, and it is not surprising that the motorist's conviction was quashed.
...
47. In the present case, the Adjudicator held that, looking at the CPZ as a whole, the irregularities established by the Appellants were trivialities that could not mislead a driver. ...
48. The Adjudicator was right to hold that the individual contraventions by the Appellants would be considered on the basis of the signings and linings where the vehicle in question was actually parked. Similarly, Bean J was correct in holding that the irregularities relied on were immaterial if they were too far from the site of the contravention to lead the motorist into error.
49. There is no challenge to the Adjudicator's findings on the individual contraventions. I would therefore dismiss this appeal.
Conclusions
Neil Herron thus repeated precedents which judges in the High Court and adjudicators must follow:
- Macleod v. Hamilton: for a traffic order to be enforceable, adequate notice of the applicable restriction must be given to the road user;
- James v. Cavey: a traffic authority should take all such steps as are reasonably practicable to secure that adequate information is provided.
Applying Soneji, the judgment held:
- signage needs to be substantially compliant with the statutory requirements;
- courts are concerned primarily with signage which is close to where the alleged offence took place;
- trivial defects in the signage that could not mislead a driver do not invalidate a penalty charge.
Substantial Compliance
This judgment is often cited as precedent for applying "substantial compliance" as the test for individual traffic signs. Yet the whole case was concerned with zonal restrictions and the effect of missing signs remote from where the alleged offence had taken place. There are only two occurrences of the words "substantial compliance":
37. The test for invalidity [of the CPZ] is not "Are the irregularities trivial?", but whether there is substantial compliance with the statutory definition.
43. If, by "properly signed", Mr Hickinbottom meant that the sign had to be in substantial compliance with the statutory specification, and not such as to mislead or fail to inform the motorist, I would agree with this statement. If he meant that absolute and strict compliance with the specification of the sign is essential, even if the motorist is adequately informed of the restriction in question, he was wrong.
of which the second was obiter.
Paragraph 40 of the judgment summarised the discussion about individual signs, concluding
I would therefore reserve my judgment as to whether Davies v Heatley [in which a strict approach had been adopted] should be followed today in a case in which the defendant could not have been misled by the irregularity in the road sign in question.
See also Reply#5 (https://www.ftla.uk/the-flame-pit/adequate-signage-for-tmos-classic-precedents/msg80267/#msg80267) for more about the circumstances of Davies v Heatley.