ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE JACK
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE JACKSON
| SHIVA LIMITED
|- and -
|(1) TRANSPORT FOR LONDON
|- and -
|(2) NSL LIMITED
Samantha Broadfoot (instructed by TFL Legal) for the First Respondent,
NSL Services Ltd (Sued As NCP Services Ltd) unrepresented as Second Defendant
Hearing date : Tuesday 11th October, 2011
Crown Copyright ©
CARNWATH LJ :
"The vehicle in question was monitored for 4 minutes (3 minutes is the usual time period and it was clear that no loading or unloading was taking place at this time. As a result, our agents were legally instructed to tow away the vehicle as a contravention had taken place."
"the vehicle is stopped only for the purposes of loading or unloading that vehicle for as long as is necessary or for a period of 20 minutes, whichever is the less "
"66 (1) Where, in the case of a stationary vehicle in a designated parking place, a parking attendant has reason to believe that a penalty charge is payable with respect to the vehicle, he may
(a) attach a penalty charge notice to the vehicle; or
(2) For the purpose of this Part of the Act, a penalty charge is payable with respect to a vehicle, by the owner of the vehicle if
(a) the vehicle has been left
(i) otherwise than as authorised by or under any order relating to the designated parking place; or
Removal of vehicles
"s 99 E+W+S(1) The Secretary of State may by regulations make provision for the removal of vehicles which have been permitted to remain at rest
(a) on a road in contravention of any statutory prohibition or restriction, or
(b) on a road in such a position or in such condition or in such circumstances as to cause obstruction to other persons using the road or as to be likely to cause danger to such persons, or
(c) on a road, or on any land in the open air, in such a position or in such condition or in such circumstances as to appear, to an authority empowered by the regulations to remove such vehicles, to have been abandoned without lawful authority,
or which have broken down on a road."
"5A (1) . where . a vehicle
(a) has been permitted to remain at rest or has broken down and remained at rest on a road in Greater London in contravention of a prohibition or restriction contained in an order having effect under
(i) section 6 of the 1984 Act so far as the order designates any parking place;
a parking attendant acting on behalf of the local authority may, ., remove or arrange for the removal of the vehicle .."
" (a) a vehicle has been permitted to remain at rest on a road in a civil enforcement area for parking contraventions in England; and
(b) a civil enforcement officer has fixed a penalty charge notice to the vehicle or handed such a notice to the person appearing to him to be in charge of the vehicle."
Though not directly relevant, this is of interest as showing an analogous context in which, unlike regulation 5A, the power to remove is expressly linked to the issue of the penalty charge notice. We have not been referred to the legislative background of this provision, and I offer no comment on it.
"(a) that there were no reasonable grounds for the parking attendant concerned to believe that the vehicle had been permitted to remain at rest in the parking place in circumstances specified in section 66(2)(a) of this Act"
So that takes one back to sub-section (2) in the parking ticket provisions (see para 8 above).
The judgments below
"14. Paragraph 5A of the 1986 Regulations (which was added subsequently to 1986) has to be read in the context of section 71 of the 1991 Act. Taking them together paragraph 5A must be construed on the basis that if the parking attendant had reasonable grounds for believing that there was a contravention, the removal was lawful and the owner has no remedy. It is unfortunate that paragraph 5A was drafted as it was: the position could easily have been clearly stated. But taking the two together I do not think that any other conclusion is possible."
Implicit in this reasoning, as I understand it, is the proposition that section 99 of the 1984 Act was to be reinterpreted in the light of the overall scheme resulting from the 1991 Act, including the limited appeal rights granted by section 71, and that regulation 5A had to be read in that context. He did not comment on, or indeed mention, the apparent contrast between paragraphs (a) and (c) of section 99(1).
The submissions in this court
i) Clark v Chief Constable of West Midlands  RTR 405 (s 99(1)(c)). It was held that a car had been lawfully removed. The question under (c) was not whether it had actually been abandoned but whether it had been left in such a position that it "appeared" to have been abandoned (per Longmore LJ para 12). I added (para 19) that the relevant provision was directed "at the perception" of the constable, which under ordinary public law principles must be reasonable. This case, in my view, does not assist Miss Broadfoot's argument. If anything it reinforces the contrast between (a) and (c).
ii) Carey v Chief Constable of Avon  RTR 405 (under s 99(1)(b)). This court held that the claimant was entitled to damages for the removal of his coach (which was also his home), from a residential road in which it had been parked for some weeks. It had been removed under s 99(1)(b) on the basis that it was in such a position as to cause an obstruction to persons using the road. Hutchison LJ (in the leading judgment) observed:
"this involves of course a judgment on the part of the police officer concerned, who must make an assessment of the extent to which that vehicle in that road constitutes an obstruction to users of that road" (p 412).
On the evidence, the officers had based their decision to remove the vehicle principally on the length of the time the vehicle had been there, and the fact that it was being lived in. They had not specifically considered whether it was obstructing other road users.
"Where a later enactment does not expressly amend (whether textually or indirectly) an earlier enactment which it has power to override, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication amends the earlier so far as is necessary to remove the inconsistency between them"
The commentary states:
"Statutory exposition Where the legal meaning of an enactment is doubtful, and a later enactment having power to override it is so worded as to show that the legislator treated it as having a particular meaning, this is said to be a statutory exposition of it. Whether statutory exposition is equivalent to implied amendment depends on whether the later enactment indicates an intention to clarify the meaning of the earlier one (thus serving as a declaratory enactment), or merely refers to it. In the latter case it is of persuasive authority only."
I am, at best, doubtful whether the argument relating to the effect of the 1991 Act can be brought within this proposition.
JACKSON LJ :
THE RT HON LORD NEUBERGER (MASTER OF THE ROLLS) :