England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHOREDITCH COUNTY COURT
(His Honour Judge Cotran)

		Royal Courts of Justice Strand London WC2 Wednesday 17th April, 2002

1. LORD JUSTICE BUXTON: I will ask Mr Justice Moses to give the first judgment.
2. MR JUSTICE MOSES: This is an appeal by the Mayor and Burgesses of the London Borough of Hackney ("the council"), with permission of the full court, against a decision of His Honour Judge Cotran given on 29th June 2001 at the Shoreditch County Court. He allowed an appeal from a decision of District Judge Wright delivered on 22nd February 2001. She had dismissed the respondent Mr Akumah's claim.
3. On three occasions the council had clamped Mr Akumah's car where it was parked on Woodbury Down Estate. That estate belongs to the council and is managed by it. The council operates a parking scheme on the estate. There were no specific findings in relation to the details of that scheme in either of the judgments of the two judges, but exhibits and Housing Estate Committee documents provide sufficient information for the purposes of the particular points raised in this appeal.
4. The council operates a parking scheme on the estate. It enables residents, who may purchase permits to park on designated spaces for their visitors, to purchase 10 vouchers for £2.50 in respect of those visitors. Each voucher has a space in which can be inserted the day, the month, the year, the hour and the minute, presumably of first parking, and the registration number of the car. The instructions on the front of the permit say that the permit must be displayed visibly so it can be read from the outside of the vehicle, and that it is an offence to park without displaying a valid permit. A new voucher is required for each day of parking.
5. The instructions on the back warn the holder of the voucher as follows:

"You are liable to be issued with a penalty charge notice if you:-

• indicate false arrival information

• do not display a valid voucher when parking

• park beyond the time allowed

• alter the entry on the voucher."

6. Under the heading "Use of Visitors Permits", the voucher continues:

"INSTRUCTIONS

1. When you park display with the Visitors Voucher clearly in the window WITH THE CURRENT VOUCHER COMPLETED IN INK.

2. You must fill in the date, time of parking and registration number clearly.

3. ANY ATTEMPT TO ALTER ANY OF THE DETAILS ON ANY PARKING VOUCHER WILL RENDER THE PERMIT INVALID."

7. There were further instructions which I need not detail.
8. On either 25th or 26th January 2000 (it is not wholly clear), the council issued a penalty charge notice and clamped Mr Akumah's vehicle. The parking officer issued a penalty charge notice, known in the jargon as a "PCN", and against the word "contravention" shown on the PCN wrote the code 04. It is apparent from the council's own instructions (not referred to on the vouchers themselves) that that means that the vehicle was parked without displaying a permit.
9. On 15th February 2001 a parking officer issued a PCN in respect of Mr Akumah's car with the code 09, denoting that it had been parked on a footway. Neither the fact that it had been parked without displaying a permit on 25th January nor that it had been parked on a footway was correct.
10. To have the clamps that were put on the vehicle on those two occasions removed, Mr Akumah had to pay a total of £120.
11. On the third occasion, on 1st June 2000, the code that was put on the PCN that was issued referred to a burnt-out vehicle. The vehicle was not burnt-out. The vehicle was clamped. Mr Akumah refused to pay and it was towed away. He refused to pay the sum that would have enabled him to use the vehicle again.
12. He appealed using an informal procedure, but asserted subsequently that despite appealing he had heard no more. He brought proceedings in the Shoreditch County Court claiming the return of £120 and damages for conversion. I should note that in the pleadings he complained that the clamping was unlawful because incorrect codes had been put on the PCN, and asserted that on each occasion the claimant's vehicle was properly parked in a residents' parking bay and displayed a valid residents' parking permit.
13. The defence of the council was unhelpful and inaccurate. It denied that the coding was incorrect, although it was subsequently accepted that it was. It denied that the clamping and towing were unlawful, and further asserted that the appeal procedure had been properly followed.
14. There was a reply to the defence that reiterated the complaints made as to incorrect coding and the inadequacy of the appeal procedures. The pleadings are surprising because, so far as Mr Akumah's claim and reply is concerned, they were well drafted and clear, despite the fact that Mr Akumah was appearing in person. They take no point questioning the legality of the council's power to introduce the parking scheme on the Woodbury Down Estate. But that point was raised at the hearing before District Judge Wright in November 2000. Accordingly, she adjourned the hearing to February 2001 so that Housing Estate Committee documents could be produced.
15. The District Judge found as a fact that all three vouchers issued on those three occasions had been tampered with, amended and were therefore invalid. She observed that the codes on the PCNs were incorrect, but concluded that that was beside the point. She dismissed Mr Akumah's claim.
16. There were two other features of her judgment. First, she did refer to the point taken as to the validity of the scheme. She said that she had looked at the committee documents, that the regulation of car parking was necessary, but dealt with a point that was apparently taken before her by Mr Akumah, appearing in person, namely that there had been no proper consultation. She concluded that there had been proper consultation - although quite how that fell within the terms of the claim as made is not clear - but said in any event she could not deal with any other arguments because they were matters of policy.
17. Secondly, she referred to the requirement (as she called it) in the instructions that the voucher be completed in ink, but she made no finding as to whether in fact any of the vouchers had been completed in ink or in pencil.
18. Subsequent to her dismissal of the claim, amended grounds of appeal were drafted either by Mr Akumah or on his behalf. They raised a number of points, but the fourth point raised was that the clamping procedures employed were entirely without lawful basis, and there was a reference to Article 1 of the First Protocol of the European Convention on Human Rights. This point was amplified by contending that the judge's rulings were inconsistent with the powers conferred on the council to make byelaws in relation to regulation of parking of vehicles on land other than a highway.
19. His Honour Judge Cotran made no reference to those arguments whatever in his judgment; although it is conceded by Mr Robb, appearing for the council, that points were touched on by Mr Akumah, again appearing in person. But as I have said, they find no reference in the judgment.
20. The judge reviewed the District Judge's judgment in detail, and rightly noted that her judgment was based on her conclusion that the vouchers had been tampered with and not on the basis that any of the vouchers had been completed in pencil. He accepted that if the permit had been altered, then, as he put it, the validity of the permit would be impugned. But he went on at page 6F to say:

"The finding that there was an alteration of the details on it, with the greatest respect, by a visual look at an indentation - certainly in respect of the third one - is not a finding that I can accept in the face of the clear position taken by Mr Akumah from the beginning that it is untrue that it was filled in, in pencil or the evidence that it was filled in by a guest."

21. He then went on to say that even if it had been filled in by pencil, it would not have been invalid. He overturned the finding by the District Judge that the permits had been altered.
22. The respondent today seeks to uphold the decision of His Honour Judge Cotran on different grounds. In the Respondent's Notice he asserts that the parking scheme as a whole is unlawful and that this has been a live issue throughout the history of this case. That argument was amplified in the skeleton argument.
23. Though the Respondent's Notice was out of time, this was a matter that had been raised by Mr Akumah, certainly in his grounds of appeal to Judge Cotran, and appears to have been raised in oral argument before Judge Cotran. Accordingly, we have given leave for the point to be argued orally before us today on the limited ground which I shall identify. As I have said, this was not a point considered by either of the previous judges in their judgments.
24. Mr Kadri QC argues that the only power conferred on the local authority to regulate parking on the estate and to clamp and remove vehicles was by making byelaws to that effect. He refers, in support of that submission, firstly to section 23(1) of the Housing Act 1985. Section 23 reads:

"(1) A local housing authority may make byelaws for the management, use and regulation of their houses.

(2) A local housing authority may make byelaws with respect to the use of land held by them by virtue of section 12 (recreation grounds and other land provided in connection with housing), excluding land covered by buildings or included in the curtilage of a building or forming part of a highway."

25. That power was extended by section 7 of the Greater London Council (General Powers) Act 1975. Section 7 reads:

"(1) The powers of the Council, a borough council and the Common Council of the City of London under section 23(1) of the Housing Act 1985 to make byelaws for the management, use and regulation of houses provided by them shall extend so as to enable them to make byelaws prohibiting or regulating the parking or use of vehicles on any land held by them for the purposes of Part II of that Act, not being a highway.

(2) Where the Council, a borough council or the Common Council of the City of London have reasonable cause to believe that an offence against byelaws made under section 23(1) of the Housing Act 1985 has been committed in respect of the parking of a vehicle the provisions of section 17 (Duty to give information in certain cases) of the Act of 1972 shall apply to such parking as they apply under that section to the use of a vehicle notwithstanding that the said parking may be outside the area of the local authority."

26. Accordingly, submits Mr Kadri QC, the system in respect of the estate has no legal authority.
27. It is accepted that no byelaws under the powers conferred by the sections to which I have referred have been made. Those submissions, however, do not deal with the logically prior question: does the council have power to regulate car parking on Woodbury Down Estate without making any byelaws at all? In my judgment it does. Section 21(1) of the Housing Act 1985 imposes a duty on the council to exercise management, regulation and control over its houses. It reads:

"21(1) The general management, regulation and control of a local housing authority's houses is vested in and shall be exercised by the authority and the houses shall at all times be open to inspection by the authority."

28. It seems to me in this modern day and age when most residents will have cars which they wish to park near their homes, that it is inherent in and certainly conducive and incidental to a council's duty to manage, regulate and control their housing, that they should regulate and control the parking of cars on their housing estate. For my part, I regard such regulation and control as inherent in the function which it is the duty of the council to perform under section 21(1). But even if that were wrong, the council has subsidiary power to do anything which is conducive or incidental to the discharge of their functions. That power is contained in section 111 of the Local Government Act 1972. Section 111(1) reads, under the rubric "subsidiary powers":

"Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."

29. It must be emphasised that because that is a subsidiary power, it is necessary to identify the function with which the power the council purports to exercise under section 111 is linked. There is no difficulty in identifying such a function. It is contained in section 21(1).
30. Mr Kadri QC argued that the function under section 21(1) does not include the regulation of parking, nor is regulation of parking incidental or conducive to the function in section 21(1): it is a wholly separate and distinct function. If, he submits, regulating parking was inherent or subsidiary to that housing function under section 21(1), so too it would have been subsidiary or inherent in the management, use and regulation of council's homes under section 23(1). In that event there was no need for Parliament to extend the power to make byelaws by means of section 7 of the Greater London Council (General Powers) Act 1975.
31. I do not agree. Section 23 of the Housing Act 1985 and section 7 of the 1975 Act are concerned with the power of the local authority to make byelaws which carry with them the right to prosecute and impose criminal sanctions. Particular care is therefore required to identify the source of such powers. Moreover, section 7 widens the power to make byelaws beyond the management, regulation and use of houses to any land, not being a highway, held for the purposes of housing and provides the power to acquire information where there is reasonable cause to believe an offence contrary to the byelaws has been committed.
32. I do not therefore accept that the impact of the extension of powers beyond those in section 23(1) of the 1985 Act is such as to make it impossible to take a common sense view of the nature of the function of regulating and managing a housing estate. As a matter of common sense, that function includes regulation of car parking, or at least carries with it that power which is plainly conducive and incidental to the housing function under section 21(1).
33. No other point was taken before us today by Mr Kadri QC. He has not pursued the written argument relating to the Human Rights Act, which was not in force in any event at the time these actions were taken by council, nor has there been any argument in relation to the actions of clamping and towing away of cars. This is not surprising, since no facts were found such as would enable the court to reach any conclusion had such arguments been advanced. I conclude that the introduction of the parking scheme was lawful, despite the absence of any byelaws.
34. I turn next to the ruling of His Honour Judge Cotran, particularly that passage I have already cited at page 6F. Mr Kadri QC says it was open to the judge to disagree with the findings of fact of District Judge Wright. He was not an expert, but nor was she. The issue has become confused by questions as to the use of pencil. It appears that the use of a pencil has some relevance, because it was only by use of the pencil first and a pen later that the alterations could be made, making it appear as if there had only been one entry. But that is beside the point. District Judge Wright was clearly entitled to find that the vouchers had been tampered with. Her finding did not merely depend upon examination of those vouchers. There had been no denial of tampering of those vouchers during the course of the arguments raised by Mr Akumah. It was not a point taken by him at any stage in his grounds of appeal. If he denied that those vouchers had been tampered with, I, for one, would have expected him to say so. But he never did. On the contrary, he appears to have blamed somebody else on the second and third occasions. The finding, as I have said, was clearly open to District Judge Wright. It was not open to Judge Cotran to dismiss her findings because of Mr Akumah's denial that he had filled in the vouchers in pencil or on the basis that he had said that the vouchers had been filled in by a guest which was, after all, a statement that did not meet the point at all.
35. He had not heard the witness. The only basis upon which he appears to have allowed the appeal, as he himself says, was the fact that he concluded that the mere filling in of a voucher by pencil was not invalid. But that was not the basis of District Judge Wright's decision. The only other basis found by His Honour Judge Cotran was, as I have said, to disturb the factual findings of District Judge Wright, which he was not entitled to do.
36. The vouchers were altered and were, accordingly, invalid. I only add that I do not think it wise to make any ruling on what the position would be if the only defect in the vouchers was that they were filled in in pencil. That is not this case. I, for my part, would allow the appeal and restore the decision of District Judge Wright.
37. LORD JUSTICE BUXTON: I agree with everything that has fallen from my Lord. I only add two very small footnotes.
38. The first is to reinforce what my Lord has said about the relationship between section 7 of the Greater London Council (General Powers) Act 1975 and section 23(1) of the Housing Act 1985. Mr Kadri argued that the contrast between those two sections demonstrated that the powers under section 23(1) were limited as he said them to be. It is however clear, in my judgement, as my Lord has already said, that section 7(1) extends the powers of a housing authority beyond those in section 23(1), or at least avoids any unclarity in the important area of making byelaws. In particular, section 7(1) of the 1975 Act extends to the regulation of parking on any land held for the purposes of Part II of the Housing Act 1985. It is clear from that Part, and not least from section 17(4) of it, that there may be circumstances where a housing authority holds land for the purposes of Part II of the 1985 Act, but where there is no housing yet in place. That is quite clear from the terms of the statute. The making of or power to make byelaws in respect of land that is not currently being used for housing purposes, and which may indeed be well away from the area of the local authority, does seem to me to be an extension of the power in section 23(1), and one that therefore shows that those who drafted the Act of 1975 cannot be assumed to have taken the view of the reach of section 23(1) that Mr Kadri urges.
39. The second and quite different point is this. The court had some considerable hesitation in permitting the matters raised in the Respondent's Notice to be raised at all. As my Lord has said, they were not raised in the original grounds before the District Judge. They, or at least some complaint, was raised orally before her by Mr Akumah, but in terms (and it is no criticism of him) that are not wholly clear. The matter was not addressed at all by Judge Cotran. We were in the end persuaded by Mr Kadri that because of that history, and bearing in mind the fact that Mr Akumah had been representing himself until a late stage, we should entertain the submissions that Mr Kadri wished to make. But I would emphasise that all that we have decided, on what may be a question that further arises as to the management and validity of local authority parking schemes, is the point that turns on the availability of the powers to be found in section 21 of the Housing Act 1985 and section 111 of the Local Government Act 1972. There may be other issues to be debated about the reach and extent of local authority housing parking schemes that are not covered, or not necessarily covered, by those considerations. We did not enter into anything of that sort: first, because we were not invited to; but secondly, because of the history of the matter we had absolutely no factual findings, and indeed no information, about the detailed nature of this scheme so far as its requirements are concerned, other than those that were set out before District Judge Wright. We have therefore decided the matter on that limited basis, and I think it right to emphasise that that is the limit of this court's judgment.
40. Those remarks, as I say, are merely ones of footnote. I also would allow the appeal.
ORDER: Appeal allowed; section 11 order for the appellant's costs to be paid by the Legal Services Commission; detailed assessment of the respondent's Community Legal Services Funding; permission to appeal to the House of Lords refused. (Order not part of approved judgment)