ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE BEAN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
SIR DAVID KEENE
| THE QUEEN ON THE APPLICATION OF
NEIL HERRON & PARKING APPEALS LIMITED
|- and -
|THE PARKING ADJUDICATOR
|- and -
|SUNDERLAND CITY COUNCIL
||First interested party
|- and -
|THE SECRETARY OF STATE FOR TRANSPORT
||Second interested party
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Ian Rogers (instructed by the Traffic Penalty Tribunal) for the Respondent
Stephen Sauvain QC and Jonathan Easton (instructed by Sunderland City Council, Law and Governance Services) for Sunderland City Council
The Secretary of State for Transport did not appear and was not represented
Hearing date: 12th July 2011
Crown Copyright ©
Lord Justice Stanley Burnton :
(1) This paragraph applies in relation to any vehicle which is stationary in a permitted parking area, or special parking area, in circumstances in which an offence would have been committed with respect to the vehicle but for paragraph 1 or (as the case may be) paragraph 2 above.
(2) A penalty charge shall be payable with respect to the vehicle, by the owner of the vehicle.
4. In these Regulations unless the context otherwise requires—
"controlled parking zone" means either—
(a) an area—
(i) in which, except where parking places have been provided, every road has been marked with one or more of the road markings shown in diagrams 1017, 1018.1, 1019 and 1020.1; and
(ii) into which each entrance for vehicular traffic has been indicated by the sign shown in diagram 663 or
(b) an area—
(i) in which at least one of the signs shown in diagram 640.2A has been placed on each side of every road; and
(ii) into which each entrance for vehicular traffic has been indicated by the sign shown in diagram 665;
Where in my judgment I refer to regulation 4 it is to regulation 4 of the TSRGD. We are concerned solely with alternative (a) in that regulation. The road markings to which it refers are single yellow lines (1017), double yellow lines (1018.1), single flash marks on pavements indicating loading restrictions (1019) and double flash marks (1020.1).
18.— Traffic signs
(1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure-
(a) before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road;
(b) the maintenance of such signs for so long as the order remains in force; and
(c) in a case where the order revokes, amends or alters the application of a previous order, the removal or replacement of existing traffic signs as the authority considers requisite to avoid confusion to road users by signs being left in the wrong positions.
(1) In this Act "traffic sign" means any object or device (whether fixed or portable) for conveying, to traffic on roads or any specified class of traffic, warnings, information, requirements, restrictions or prohibitions of any description—
(a) specified by regulations made by the Ministers acting jointly, or
(b) authorised by the Secretary of State,
and any line or mark on a road for so conveying such warnings, information, requirements, restrictions or prohibitions.
(2) Traffic signs shall be of the size, colour and type prescribed by regulations made as mentioned in subsection (1)(a) above except where the Secretary of State authorises the erection or retention of a sign of another character; ….
25(1) Subject to paragraph (2) a road marking shown in a diagram whose number appears and is in the form (if any) specified in an item in column (2) of the Table may be placed on a road only in conjunction with, and on the same side of the road as, a sign shown in a diagram whose number appears and in the form specified (if any) in column (3) of that item.
(2) Paragraph (1) shall not apply to a road marking placed on a road within a controlled parking zone, if signs shown in diagram 663 or 663.1 have been placed at the entrances for vehicular traffic into the zone, except where the road marking is placed to indicate restrictions different from the restrictions indicated on those signs.
The facts and previous proceedings
(g) High Street West. It is submitted that the echelon taxi bays and the disabled bays in this area are not properly marked. As a result this becomes uncontrolled highway and invalidates the CPZ. I am of the view that that is not the correct approach and that such matters should only be considered in the event of a PCN being issued for parking in those particular areas.
(i) Pan Lane – loading bay. This is referred to in binder 10 and page 129 of Mr Bentley's report indicates that the loading bay was not correctly signed and lined. As a result it is contended on behalf of the Appellant that the incorrect use of signs and lines for these loading bays makes the area an uncontrolled highway and therefore invalidates the general CPZ. I am of the view that this is only relevant in the case of an individual PCN being applied to that particular site and that it does not invalidate the CPZ as a whole.
(k) Central Area Development. This is referred to in bundle 13 and at page 136 of Mr Bentley's report. The roads referred to in this area are in fact lined only with hatched markings which have no legal standing. Looking at the reality of the situation the roads referred to therein are in fact the entrance and exit to a multi-storey or other car park. There are no yellow lines and it is therefore submitted that the lining and signing of these roads invalidate the whole of the CPZ as it becomes an uncontrolled road. I reject that suggestion and it is a matter for an Adjudicator to consider each individual PCN which may or may not be the subject of this appeal. Additional evidence was submitted to me showing photographs taken on the 18 November where the council have now put double yellow lines on these roads. The fact that the Council has taken remedial action does not in my view indicate that they accept that the wider CPZ is unenforceable but merely emphasises to the motorist that parking on these entrance and exit roads is prohibited.
Athenaeum Street. This is referred to at binder 16 and page 145 of the report. It is contended that the dual use bay for taxis and the disabled is incorrectly marked with double transverse terminal marks. It is suggested that these are unlawful. If they are then it is a matter entirely for the discretion of an Adjudicator when dealing with any specific PCN issued in that area but does not, in my view, invalidate the CPZ as a whole.
The establishment of a controlled parking zone is dependent upon the provision of signing compliant with the TSRGD 2002. I am of the view that it is not necessary for there to be a Traffic Regulation Order to establish a controlled parking zone but only the restriction on parking or the provision of parking places within it. It is contended generally by the Appellant and Mr Bentley in his report that if part of a road within a CPZ is not marked in accordance with Regulation 4 that the CPZ should not be enforced. I have had produced to me a substantial number of instances, as outlined above, where there were incorrect markings or uncontrolled highway within the CPZ in Sunderland.
In relation to this it is important in my view to refer to the case of Cannadine v DPP  EWHC 383 (Admin) which decided that the fact that the back of a road sign showing a speed limit had been painted the wrong colour did not make the road de-restricted. There had been no question of the driver being misled and consequently the law was not troubled by trivialities.
Looking therefore at the CPZ as a whole the absence of a yellow line, the fact that the single stretch of road had not been marked, or that some of the bays, taxi, disabled, bus-stops, etc had not been correctly marked, should be considered trivialities which could not mislead a driver who parked on a clearly marked restriction. I am of the view that applying that decision the CPZ in Sunderland stands and that contraventions against the TROs in particular streets should be considered on an individual basis within the CPZ depending upon the signings and linings where the vehicle was actually parked.
… I remain of the view that a motorist driving into an area which is a CPZ will be correctly notified of that by the entry signs and will know that there are restrictions in place for parking during the hours stated upon that. If the motorist then chooses to park on a yellow line he or she must expect a contravention to have occurred and if the motorist parks in a bay then he or she should abide by the restrictions and timings indicated on any plate relevant to that bay.
In the event the Appellant in this case is well aware of the restrictions imposed by the CPZ and in my view in the majority of cases has deliberately parked his vehicle to ensure the issue of a PCN so that he can challenge the validity of the CPZ as has been the case in these appeals.
23. In my judgment regulation 4 on its proper construction means that every part of every road in a CPZ, other than a parking bay, must be marked with a single or double yellow line (with or without the "loading and unloading" equivalents), except where an alternative parking prohibition is marked out such as that imposed by the zig-zags on the approach to a pedestrian crossing. Furthermore, I consider that any non-compliance, whether accidental or (if I am wrong on the previous point) arising from the presence of an alternative parking prohibition, is immaterial if it is too far from the location of the particular motorist's contravention to have led him or her into error.
The parties' submissions
23. … the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General's Reference (No 3 of 1999)  2 AC 91 the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. …
It was an integral part of the statutory scheme for a traffic regulation order that notice by means of traffic signs should be given to the public using the roads which were restricted so as to warn users of their obligations. Unless these traffic signs were there accordingly and the opportunity was thus afforded to the public to know what they could not legally do, no offence would be committed. It would, indeed, be anomalous and absurd were the position otherwise.
Lord Migdale said, at.309
. . . the order is not effective unless and until the council complies with Regulation 15(c) and erects road signs at the locus. Signs were erected but they were not the proper ones nor were they clear.
The regulation to which Lord Migdale referred was in the same terms, so far as material, as Regulation 18 of the Procedure Regulations.
… regulation 15, by sub-paragraph (c) … [prescribed] that the authority should take forthwith
"all such steps as are reasonably practicable to cause to be erected on or near to the said roads traffic signs in such positions as the local authority may consider to be requisite" - and here come the operative words in my opinion - "for the purpose of securing that adequate information as to the effect of the order is given to persons using the said roads …"
The authority should take all such steps as are reasonably practicable for the purpose of securing that adequate information is given to persons using the said roads.
The short answer in my view which requires that this appeal should be allowed is that the local authority here did not take such steps as they were required to take under that regulation. They did not take steps which clearly could have been taken and which clearly would have been practicable to cause adequate information to be given to persons using the road by the signs which they erected. …
See too R (Oxfordshire C.C.) v. Bus Lane Adjudicator  EWHC 894 (Admin).
… in summary, as a condition precedent of a local authority enforcing a parking penalty, as a breach of a TRO made under the 1984 Act, the obligations of a motorist must be properly signed in accordance with the detailed provisions of the [1994 TSRGD]."
In my judgment, the event which gives rise to liability to a PCN in the de-criminalised parking scheme (the equivalent of the offence under a criminal statute) is parking in contravention or non-compliance with a provision in the 2005 Consolidated Order. The provisions of the Order are couched in language such as "the prohibition on parking during controlled hours on a road within a specified zone or loading bay or taxi rank". Those controls may be specified other than by reference to specific markings. I assume that the provision prohibiting a stay longer than paid for in permitted on-street parking bays is in similar vein. It therefore seems to me that two approaches are possible although neither arises unless the signs depart from the prescribed form in a more than trivial way. The first approach, on what I have been shown of the Bolton MBC Orders, is not to ask whether the signs comply with the Regulations where contravention of the sign itself is not prohibited. It is to ask whether the signing of the restrictions was adequate to inform the average driver of what he should or should not do or where. This would reflect decisions such as Hassan and James v Caley. I have not been shown any provision of the TRO which makes non-compliance with a prescribed marking or sign, by itself, a contravention of the TRO. It appears to be the reverse. The sign informs the driver about the restriction in the TRO. And if the restriction is itself adequately conveyed by means other than the sign and the sign does not mislead about the nature or extent of the restriction, the TRO on that approach may be enforced by PCN.
43.The importance of this is that it may contrast with the language of the offences in Davis v Healey and Canadine v Director of Public Prosecutions in which the offence itself was contravening the prescribed road marking or sign. So any deficiency in the prescribed sign was directly in issue.
45. The alternative approach is to ask whether - subject to trivial non-compliance - the markings meet the prescribed requirements. If not, those markings should not have been placed on the road at all and the requirements or restrictions they indicated have no force, even though it may be perfectly clear from the deficient signs where and to what extent the restriction applies.
47. I have not found this an easy issue to resolve, not least because of my uncertainty about the statutory provisions which I have actually received (late and incompletely perhaps), the differing lines of authority and also because the issues have not been argued either by the auditor or by Bolton MBC.
48. In the end, and without great confidence, I have concluded that what Mr Hickinbottom said in Buckinghamshire County Council should be taken to be the law. The purpose behind a common prescribed system of road signs and markings includes certainty for drivers wherever they are in the country. They are not therefore faced with different varieties of signs wherever they go for the same permitted parking, prohibitions and restrictions. The common system also regulates signs in order to avoid clutter and confusion to road users by regulating what can or cannot be put on the road surface or signs by its side.
Lord Justice Aikens:
Sir David Keene: