@John_S I've now had a
reply from Merton to my FoI. I don't consider it addresses the issues and have
requested an internal review.
While I consider that Merton deserve heat on their signage for the school streets, I'm not convinced that the courts would accept that the addition of an "Except authorised vehicles" plate (even with the erroneous "for") renders the pedestrian and cycle zone invalid.
De minimis comes to mind.
On the other hand, I do think that there's a strong line of argument to do with the Council's failure to apply its TMO consistently. While Merton's website (and Council papers) talk about applying the scheme only during term time, the TMOs don't, e.g. the
TMO for Hollymount School. This TMO declares:
3. Without prejudice to the validity of anything done or to any liability incurred in respect of any act or omission before the coming into force of this Order, no person shall cause any vehicle to enter any road or length of road specified in column 2 of the Schedule to this Order during the corresponding prescribed hours specified in column 3 of the Schedule to this Order.
Schedule
column 2. Cambridge Road, between its junction with Pepys Road and its junction with Lambton Road
column 3. Between 8.15am and 9.15am and between 2.45pm and 4pm Mondays to Fridays
While you may consider that Merton are under no obligation to issue PCNs during school holidays, they are obliged to administer the law fairly. While the intention of the scheme may well have been that it should only apply during term time, that isn't what they have actually legislated. The TMO applies during the specified hours Monday to Friday throughout the year.
If you get a PCN for entering a school zone one Monday and another person doesn't who enters the same school zone at the same time a week later (perhaps on a Bank Holiday), you are entitled to feel aggrieved. Why have Merton issued you with a PCN when they haven't issued a PCN to someone who did the same thing a week later? Merton may say "Ah, but the school wasn't in session". So what? Merton have legislated to prohibit entry at that time on a Monday regardless of whether the school is in session or not.
This failure to be even-handed in administering justice violates the fundamental doctrine on which administrative law is based: the Rule of Reason. This dates from the sixteenth century and states that discretionary powers must be exercised for sound reasons; if they are not, the courts can intervene and overrule the decision taken.
The modern version of this is the concept of
Wednesbury unreasonableness. In the words of Lord Greene MR
... a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.
Actions by public bodies can be challenged by judicial review, which is essentially concerned with whether or not the Rule of Reason has been observed. Many cases of judicial review turn on whether a public body has acted from improper motives or irrelevant considerations, or has failed to take account of relevant considerations. In either case, the body's actions may be found
ultra vires and therefore void.
[I have been very conscious of this because shortly after I joined the Department of Education and Science, it was dealt a body-blow by the House of Lords (now the Supreme Court) in the
Tameside case. This found that the Secretary of State had acted unreasonably in not allowing Tameside MDC at short notice after an election to change its plans to go comprehensive.]
While the costs of judicial review are large, it is possible to make a collateral challenge to the reasonableness of an administrative action in the course of other proceedings. Thus a PCN can be challenged on the grounds that the local authority is acting
Wednesbury unreasonably in issuing the PCN to the appellant and not to other people who have contravened the TMO in a like manner.
Such a challenge would fail if the council used folding signs which were covered up during school holidays (Cornwall) or signs which lit up when the pedestrian and cycle zone was in force and were blank at other times. In those cases, the council could point to the absence of visible signage as a relevant consideration in its decision not to issue a PCN notwithstanding that the TMO specified that the zone was in force.
Note that the test of unreasonableness is not "the man on the Clapham omnibus" but
Wednesbury. The man on the Clapham omnibus might well say that it's reasonable only to issue PCNs when the school is in session. But if the TMO doesn't say anything about the school term or the school being in session, those are irrelevant considerations, so the decision is likely to be
Wednesbury unreasonable.
If a collateral challenge is made to a PCN on the grounds of
Wednesbury unreasonableness, the adjudicator will be obliged to consider it. This is likely to prove a very hard chestnut: adjudicators can hardly dismiss it out of hand, but to concede it is likely to lead to judicial review proceedings by the local authority against the traffic penalty tribunal (so zero financial risk to the appellant). The easy escape (for both the local authority and the tribunal) is to allow the appeal on other grounds which have been included in the appeal. So much the better if these are ones which involve findings of fact by the adjudicator, as those are final.
