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.
