Court of Appeal applies principles of substantial compliance in public law test case

02 Aug 2011 | by Caroline Sweeney

NEIL HERRON  and PARKING APPEALS LIMITED v THE PARKING ADJUDICATOR; (SUNDERLAND CITY COUNCIL and the SECRETARY OF STATE FOR TRANSPORT as Interested Parties)

Court of Appeal (Stanley Burnton and Aikens LJJ, Sir David Keene)

[2011] EWCA Civ 905

The Court of Appeal handed down judgment last week in a public law case concerning the application of the principles of substantial compliance to the apparently mandatory duties of local authorities to use prescribed traffic signs and road markings.

This was an appeal against a decision of Bean J to reject a judicial review of the Parking Adjudicator’s decision in a test case concerning the effect of alleged defects in traffic signs and road markings on the liability to pay the penalty charge (a parking ticket). The approach of the Parking Adjudicator was again upheld.

The judgment applies the law on substantial compliance to the issue of defective signs and lines. It considered the divergent lines of authority drawn to the Court’s attention by the Parking Adjudicator. Doubts were expressed by the Court of Appeal about a line of authority developed by the courts in cases where the offence consists of the failure to comply with an indication given on a traffic sign (speeding offences, for example). The recent decision of Ouseley J in Moss v KPMG [2010] EWHC 2923 (Admin) was held to be wrongly decided insofar as that case followed Davies v Heatley [1971] R.T.R. 145. The Court of Appeal held that it was difficult to reconcile the strict approach in Davies v Heatley with the modern approach to statutory interpretation and substantial compliance exemplified by R v Soneji [2006] 1 A.C. 340.

The Appellants’ submission that any departure, other than one which was trivial, from the definition of a “controlled parking zone” in regulation 4 of the Traffic Signs Regulations and General Directions 2002 invalidated the entire controlled parking zone was rejected. In any event, it accepted the Parking Adjudicator’s submission that the original adjudicator had made findings of fact that all alleged defects in signs and lines fell within the de minimis principle.

Furthermore, the test to be applied in order to decide whether an irregularity is trivial was whether it could have misled a road user as to the significance of the road sign. This was the test applied by the original adjudicator, whose decision was therefore upheld.

The decision of the Court of Appeal brings to an end a long-running case which originally disposed of a challenge to the independence of the Parking Adjudicator under Article 6 ECHR.

Ian Rogers appeared throughout the proceedings for the Parking Adjudicator, instructed by the Traffic Penalty Tribunal.