An important spin-off case:
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 2230282004
Appellant Commercial Plant Services Ltd
Authority Transport for London
VRM WX69ZDD
PCN Details
PCN GX06515327
Contravention date 04 Apr 2023
Contravention time 08:16:00
Contravention location O/S 201-213 BOROUGH HIGH STREET SE1
Penalty amount N/A
Contravention Stopped where prohibited on red route or clearway
Referral date
Decision Date 04 Jul 2023
Adjudicator Alastair Mcfarlane
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons
The Appellant was due to attend for a personal appeal before me today, but has not done so. No explanation has been received by the tribunal for the Appellant's absence. In the circumstances I consider it just proportionate to determine this appeal on the information before me in the absence of the Appellant.
The Authority's case is that the Appellant's vehicle was stopped where prohibited in a loading and disabled persons box on the red route outside permitted hours in Borough High Street on 4 April 2023. A penalty charge notice was issued at 08 16.
Following the panel decision in Commercial Plant Services v Transport for London this appeal must be allowed as this contravention is not enforceable on the basis of a record produced by an approved device. No other issue may be determined.
Decision Date 01 Mar 2024
Adjudicator Carl Teper
Previous decision Appeal allowed
Appeal decision Appeal allowed
Direction
cancel the Penalty Charge Notice and the Notice to Owner.
Reasons
The Appellant was represented by Mr I Murray-Smith and the Enforcement Authority was represented by Mr A Garratt.
This hearing was set down for a review application on 8 February 2024. Mr Garratt made an application on 23 February 2024 for this review application to be rescheduled to a date that was suitable to his Counsel because the arguments were too complex for him to deal with. Further, that the Appellant's representative had submitted a skeleton argument of some 70 pages on 21 February 2024, and that he would not have time to deal with the issues raised.
Whilst the skeleton argument was 70 pages, the actual submissions are contained in fewer than nine pages of double-spaced script. I did not consider that there was anything in the skeleton argument that was new or that Mr Garratt could not address. This was essentially a one issue review application to decide whether this tribunal had jurisdiction to decide an application for review. The issue turned on a legal finding made by Swift J in the High Court case Transport for London, R (on the application of) v London Tribunals (Environment and Traffic Adjudicators) [2023] EWHC 2889 (Admin) (“Transport for London”).
TFL had applied for a review of the original decision soon after it was made on 10 July 2023. No decision was taken as to whether a review would be heard until the High Court gave its decision on the substantive issue. After the decision was delivered, TfL refreshed its application for a review. It is clear, therefore, that Mr Garrett was on notice that the issue of the adjudicator’s power to review an error of law would have to be resolved at a hearing, since the judgment of the High Court in November 2023 and has had sufficient time to prepare for today's application for a review.
I refused the application to adjourn on 26 February 2024, and again today before the hearing commenced at 3pm on 29 February 2024, because I find that it is not in the interests of justice to delay this matter further.
This is an application by the Enforcement Authority, TfL, for a review of the decision of Adjudicator Alastair McFarlane (“the Appeal Adjudicator”), who allowed this appeal on 4 July 2023.
The application is made under paragraph 12, Part 2, Schedule 1 to the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022 (“the 2022 Appeals Regulations”).
The decision by the Appeal Adjudicator was that, following the coming into force of the Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022 (“the 2022 Regulations”), and following a decision of a panel of adjudicators on 26 May 2023, there is no power to serve a penalty charge notice by post on the basis of evidence from a prescribed camera device for the contravention of being stopped where prohibited on a red route, other than when stopped on single or double red lines. In this case the vehicle was parked in a loading bay during part of the prohibited time on the red route in Borough High Street.
The High Court in Transport for London, decided, though, that the panel decision was wrong and that, following the coming into force of the 2022 Appeals Regulations, there was power to serve a penalty charge notice by post on the basis of evidence from a prescribed camera device for the contravention of being stopped where prohibited on a red route in a bay in addition to single or double red lines.
It is significant that the Chief Adjudicator had previously refused TfL’s application for a review of the panel decision. Swift J considered, as part of TfL’s application for judicial review, whether the Chief Adjudicator even had the power to entertain the application.
In the judgment of Swift J. at paragraphs 26 to 28 "... 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. Transport for London’s challenge to the Chief Adjudicator’s decision on the review application therefore fails.
28. The application for judicial review of the adjudicators’ decision of 26 May 2023 is allowed with the consequence that the decision allowing the appeals of the 4 interested parties are quashed and will be replaced by a decision dismissing each of those appeals."
The High Court therefore plainly decided that the Chief Adjudicator had no jurisdiction to entertain TfL’s application for a review because that application alleged an error of law by the panel, which was not amenable to review by another adjudicator and could only be put right by judicial review.
I do not accept the argument by Mr Garratt that a review in this case would not be on a point of law, and that it could somehow be argued that it was a question of fact or concomitant on the judgment in the Transport for London case. What Mr. Garratt for TfL is saying is, in reality, that the Appeal Adjudicator made an error in interpreting the 2022 Regulations so as to conclude that TfL had no power to serve a PCN by post. That is an alleged error of law, not of fact. Indeed, it was the same error of law made by the panel the application for review of which the Chief Adjudicator should not, according to the judgment of the High Court, have entertained.
The ruling by Swift J was one that was sought by TfL, which was the only legally represented party in the High Court proceedings. If TfL contended, as it now contends, that the effect of paragraphs 26 to 28 of the judgment was not as it appears on the face of those paragraphs, or if there was any ambiguity about it, that was a matter that could and should have been raised before Swift J before judgment was formally handed down.
The application for a review is refused.
