Transport for London, R (on the application of) v London Tribunals (Environment and Traffic Adjudicators)

The adjudicators allowed the 4 appeals that turned on the “core issue”. Their reasoning on that issue can be summarised as follows. The adjudicators considered what they described as each party’s “literal interpretation” of the regulation 11(2) definition of red route. The submission for the appellants was that where a parking contravention occurred in a marked parking space there had to be either a single or double red line and the required “upright sign”. The adjudicators were doubtful as to the latter requirement: see the decision at paragraph 35. Transport for London submitted that the two parts of the definition, (a) and (b), were alternatives such that there had to be either the red line or lines on the road or an upright sign.

The adjudicators then considered the predecessors to the 2022 Regulations so far as those Regulations had permitted notification of penalty charges by post. Regulations made in 2007 (the Civil Enforcement of Parking Contraventions (England) General Regulations 2007, “the 2007 Regulations”) had given general permission to enforcement authorities to notify by post in cases where they had “reason to believe” a penalty charge was payable “on the basis of a record produced by an approved device”. An amendment introduced by Regulations made in 2015 removed the general permission and put in its place provisions like those in regulations 10 and 11 of the 2022 Regulations. The definition of red route in 2007 Regulations as amended by the 2015 Regulations was different.

“Red route means a road conveying such red route road markings and signs as authorised and directed by the Secretary of State in exercise of powers conferred on him by sections 64(1) and (2) and 65(2) of the Road Traffic Regulation Act 1984”.

But that only reflected the fact that the 2016 Regulations had not yet been made.

The 2007 Regulations were amended again by Regulations made in June 2020. At this time the definition of red route was changed to take account of the 2016 Regulations.

“Red route means a road marked in accordance with diagram 1018.2 at item 11 or diagram 1017.1 at item 12 of Part 4 of Schedule 7 to the Traffic Signs Regulations and the upright sign at Part 1 of the Schedule 6 to those Regulations.”

That definition was in regulation 9A(7) of the 2007 Regulations. It is word for word the same as the definition now in regulation 11(2) of the 2022 Regulations, albeit not laid out in sub-paragraphs (a) and (b) as it is in the 2022 Regulations.

The adjudicators noted that the stated purpose of the amendment made by the 2015 Regulations had been to rein in what was described as “overzealous enforcement” by local authorities. Paragraphs 7.3 to 7.5 of the Explanatory Memorandum for the 2015 Regulations included the following.

“7.3

Ministers are concerned that this overuse of CCTV has unfair consequences on the public. An individual accused via CCTV misses an initial opportunity to receive discretion; an opportunity that is available to someone who is observed by a Civil Enforcement Officer (CEO). It is also unfair because drivers receive penalty notices in the post weeks later. With no opportunity to examine the parking location as it was at the time of the alleged contravention. Signs may have been obscured or fallen down, and lines could have been hidden – which could change before the driver could return to inspect the location.

7.4

The Government believes that powers are not being used as originally intended. Statutory guidance requires that “approved devices are used only where enforcement is difficult or sensitive and CEO enforcement is not practical. …

7.5

These legislative changes are intended to be a proportionate response to this. With local authorities seeming to ignore guidance, Ministers felt something more robust than tightened guidance would be necessary. By requiring a notice to be affixed to the vehicle whilst retaining the possibility of using CCTV and service by post in certain cases (such as contraventions outside schools and along red routes), Ministers consider the right balance will be struck between ensuring safety and traffic flow, whilst ensuring CCTV is not used excessively.”

When reaching their conclusion on the meaning of regulation 11(2) of the 2022 Regulations, the adjudicators had in mind whether notification by post of parking contraventions of the type before them was consistent with the sentiment in the Explanatory Note. At paragraph 56 of their decision the adjudicators stated as follows.

“56.

Second, and linked to what was said in the explanatory memorandum to the 2015 Amendment Regulations at paragraph 7.3, a motorist who receives a PCN issued on the basis of evidence produced on an approved device in respect of an alleged contravention of a loading/unloading bay may find it impossible to obtain the necessary evidence, after the event, to discharge the burden of proving loading/unloading. A motorist parked in such a bay who encounters a CEO may, there and then, be able to show the CEO that s/he is loading or unloading or if served with a PCN at the scene, can readily obtain the evidence – perhaps from the persons at the premises at which s/he was loading or unloading – to substantiate that claim in representations. A prime example of this is in Mr Jackson’s case in which he might have had the chance to obtain evidence there and then from the premises at which he had made the purchase in question. That chance, is to a significant extent, diminished if the PCN is served well after the event on the basis of CCTV footage.”

Mr Jackson’s case was one of the 4 appeals in which the “core issue” (i.e., the meaning and application of the definition of red route in regulation 11(2)) was the decisive issue. The adjudicators were concerned that enforcement of penalty contraventions of this type in reliance on camera evidence was too prone to error, in that whether a contravention had occurred could depend on matters unlikely to be captured in a photograph. One example arose from the facts of Mr Jackson’s case – whether the vehicle was stationary only for the purpose of loading or unloading. Another possible situation the adjudicators referred to was one where commission of the contravention turned on whether the vehicle had the benefit of an exemption such as a disabled person’s blue badge. Depending on how the vehicle was parked a camera picture might not pick up a blue badge even when the badge was properly displayed.

The adjudicators’ final conclusion, at paragraphs 60 and 61 of the decision, was as follows.

“60.

The panel finds, having analysed the extensive submissions and materials with which we have been provided, that parking contraventions on a red route enforceable on the basis of a record produced by an approved device are confined, in the context of Regulation 11(2) to those where the vehicle is stationary on a length of road marked with double or single red line markings. There is a material distinction between the definition of a red route for the purposes of the [2016 Regulations] and the definition in Regulation 11(2) governing the circumstances in which camera enforcement of parking contraventions is permissible. That is to say, the contexts are different.

61.

No one suggests that contraventions of red route parking bays marked with the [Diagram 1028.4 marking] are not enforceable at all. They are enforceable but, the panel finds, the meaning of the 2022 Regulations is that they are not enforceable on the basis of a record produced by an approved device. They are enforceable by CEOs and in the event the CEO is unable to effect service of the PCN in the circumstances described in Regulation 9(4) to (6), by post.”

In other words, unless the parking contravention on a red route occurred at a place marked with a single or double red line, the contravention is not a “regulation 11 parking contravention”.

Earlier in their decision, the adjudicators had said the following on the meaning of the definition of red route in regulation 11(2).

“51.

Without the express division into limbs (a) and (b) as is seen in Regulation 11(2) of the 2022 Regulations, one logical reading of the definition in Regulation 9A(7) is as follows:

“Red route means a road marked in accordance with:

[Diagram 1018.2 at item 11 of Part 4 of Schedule 7 to the Traffic Signs Regulations]

or

[Diagram 1017.1 at item 12 of Part 4 of Schedule 7 to the Traffic Signs and Regulation and the upright sign at Part 1 of Schedule 6 to those regulations]”

52.

That is to say, with the parentheses inserted as above, CCTV enforcement is available where the vehicle is stationary on a red route marked either with double red lines (in which case no upright sign is required) or with a single red line (in which an upright sign is also required, to state the restricted hours).That construction of Regulation 9A(7) avoids the unsatisfactory consequences of Mr Murray-Smith’s literal approach. It is also, in the Panel’s view, consistent with a ‘purposive’ and common-sense construction. It would follow that if that was the correct interpretation of Regulation 9(A)(7), and if TfL is correct that the definition is simply carried over to the 2022 Regulations, the insertion of the ‘limbs’ (a) and (b) would be a drafting error, albeit an error primarily of form not substance. The drafting error could be put right if the words of limb (b) were read as if the words ‘in the case of diagram 1017.1 at item 12” were put before them’.”

The submission for Transport for London to me was that this was the conclusion the adjudicators reached on the meaning of definition red route in regulation 11(2) and was the premise for the adjudicators’ final conclusion at paragraphs 60 and 61.

I do not consider the adjudicators’ final conclusion is correct. To the extent their final conclusion rested on what is said at paragraphs 51 and 52 of the decision, on the meaning of the regulation 11(2) definition of red route, the conclusion also rested on a false foundation. While the proper effect of the regulation 11(2) definition is open to argument, it certainly does not have the meaning canvassed at paragraph 51 of the decision. The requirements in sub-paragraphs (a) and (b) of the definition are cumulative; to be a red route for this purpose the road must be marked “in accordance with” both requirements. The requirements are not alternatives. That had been the submission made to the adjudicators by Transport for London, a submission the adjudicators were right to reject.

Nor is it correct that the requirement at sub-paragraph (b) for signage can be construed as applying to one but not the other of the two alternative requirements within sub-paragraph (a). The starting point for the adjudicators’ apparent conclusion that this was so, was that there was an error in the definition in regulation 11(2) of the 2022 Regulations because the drafting rested on a misunderstanding of the meaning of its predecessor in the 2007 Regulations, as amended (i.e., regulation 9A(7) in the 2007 Regulations, set out above at paragraph 12). That rested on the view that the definition as stated in regulation 9A(7) of the 2007 Regulations had distinguished between roads with double red lines (Diagram 1018.2 at paragraph 6 above) and roads with single red lines (Diagram 1017.1, also at paragraph 6 above), and only applied the requirement for a sign to the latter and not the former. That view is wrong and would itself depend on an argument that the definition inserted into the 2007 Regulations itself contained a drafting error insofar as it had omitted a comma (after the words “diagram 1018.2 at item 11”). There is no reason to think that the definition inserted into the 2007 Regulations should be understood in this way. It should be understood as enacted: i.e. that the signage requirement applied regardless of whether the road was marked with a double red line or a single red line. There is nothing inherently illogical or obviously wrong with the position that the signage requirement should apply regardless of whether the red line was single red line or a double red line. Since that is so, the suggestion that the definition of red route in regulation 11(2) of the 2022 Regulations itself contained an error, or for that matter perpetuated some previous error in the Regulations as they were in force from June 2020, is baseless. The court can only be concerned with obvious drafting errors in the sense explained by Lord Nicholls in his speech in Inco Europe Ltd v First Choice Distribution [2000] 1WLR 586 at page 592 C-H. There is no such error in the definition of red route, whether one looks at the definition put into the 2007 Regulations with effect from June 2020, or the definition at regulation 11(2) of the 2022 Regulations. It follows that the correct conclusion is that the definition of red route requires that both condition (a) and condition (b) are met.

This, however, leaves open the question raised by Transport for London’s challenge to the adjudicators’ decision. The definition of red route requires that the “road” be “marked in accordance with” the requirements in sub-paragraphs (a) and (b). Is a road still marked “in accordance with” the requirement for either a single or double red line if the road also includes parking bays marked in accordance with the requirements for parking bays in Part 4 of Schedule 7 to the 2016 Regulations? I consider the answer is yes. A road is marked “in accordance with” diagrams 1018.2 and 1017.1 in Part 4 of Schedule 7 to the 2016 Regulations notwithstanding that it includes parking spaces marked in accordance with diagram 1028.4 in the same Part of the same Schedule. There is nothing on the face of the 2022 Regulations that tells against this conclusion. Nor do I consider there is any particular reason why only some rather than all parking contraventions occurring on a red route should be capable on enforcement through the provision made by regulation 10 of the 2022 Regulations. The practical point relied on by the adjudicators that contraventions arising from the use of marked parking bays might be less obviously proved by camera evidence than, for example, the contravention when a vehicle parks on a red route where there is no parking bay, is a good practical point. However, that practical point more logically bears upon the requirement in regulation 10(2)(a), i.e., the requirement that Transport for London as enforcement authority must have the required “reason to believe that a parking charge is payable”. It is perfectly possible that in some instances photographic evidence will not be sufficient to provide the required reason to believe, precisely because of the possibility that the vehicle may be parked within the bay in circumstances permitted by the relevant traffic order. Therefore, I do not consider that the practical point determines the proper meaning of the regulation 11(2) definition. The better view is that the inclusion within the category of regulation 11 parking contraventions of contraventions occurring when a vehicle is stationary on a red route is intended, in principle, to include all such contraventions not just some of them, and that the regulation 10(2)(a) issue of whether the photograph is sufficient to provide the required reason to believe will fall to be decided by the enforcement authority, case by case.

The further advantage of the conclusion I have reached is that it better suits the ordinary meaning of the phrase “in accordance with” by permitting the meaning of the condition requiring compliance with diagrams 1018.2 and 1017.1 to be determined taking account of the provisions in Part 4 of Schedule 7 to the 2016 Regulations, in the round. Considering the provisions of that Schedule generally, a red route marked with either single or double red lines and containing parking bays marked in accordance with Diagram 1028.4 would be properly marked as required by the Schedule. Since that is so, it would be a strange (and strained) reading of the regulation 11(2) definition of red route that concluded that a red route, properly so marked, was nevertheless not marked “in accordance with” diagrams 1018.2 and 1017.1. The submission made by Commercial Plant Services Ltd is that this conclusion is tantamount to reading words into sub-paragraph (a) of the regulation 11(2) definition to include a reference to Diagram 1028.4. There is a sense in which that can be said to be correct, but that is no more than the consequence of giving proper value to the words “in accordance with” and appropriate weight to the fact that the Diagrams 1018.2 and 1017.1 do not exist in isolation but are parts of a scheme of requirements within Part 4 of Schedule 7 to the 2016 Regulations.

Lastly on this point, the conclusion I have reached is consistent with the general obligation on authorities such as Transport for London on the positioning of road signs. By section 64 of the Road Traffic Regulation Act 1984 a “traffic sign” includes “any line or mark on a road for conveying … [a] restriction or prohibition”. Thus, a single or double red line is a traffic sign. Regulation 18 of the Local Authority’s Traffic Orders (Procedure)(England and Wales) Regulations 1996 (made pursuant to powers in the 1984 Act) requires an authority which has made a traffic order to place at or near the road.

“… such signs in such positions as [the authority considers] requisite for securing that adequate information as to the effect of the order is made available to persons using the road.”

This informs the content of the obligation to mark single or double red lines. It further supports the conclusion that when there is a parking bay marked in accordance with Diagram 1028.4 on a red route the road is nonetheless marked “in accordance with” the requirement for a single or double red line.

For these reasons, Transport for London’s challenge to the adjudicators’ decision succeeds. The parking contraventions in issue in the 4 appeals were ones in respect of which Transport for London was permitted under the 2022 Regulations to give notice of the penalty charge by post. The contraventions in issue were “regulation 11 parking contraventions” because by parking in the parking bays on the occasions in question, the vehicles were stationary on a red route within the definition in regulation 11(2) of the 2022 Regulations.