Akumah v Hackney London Borough Council

A local housing authority may regulate parking on its housing estate without making byelaws where that regulation is inherent in, or conducive or incidental to, its statutory duty to manage, regulate and control its houses under section 21(1) of the Housing Act 1985, supported by section 111(1) of the Local Government Act 1972.

The specific byelaw powers in section 23(1) of the Housing Act 1985 and section 7 of the Greater London Council (General Powers) Act 1975 do not exhaust the authority’s ordinary management powers. An appellate judge who has not heard the witnesses may not overturn a first-instance factual finding that was plainly open to the trial judge. The court left open whether completion of a parking voucher in pencil alone invalidates it.

The council operated a visitor-parking scheme on its housing estate. On three occasions it issued penalty charge notices, clamped the claimant’s vehicle and, on the third occasion, towed it away. The recorded contravention codes were accepted to be incorrect. The first-instance judge nevertheless found that the visitor vouchers had been tampered with and dismissed the claim for repayment and damages for conversion.

On appeal, His Honour Judge Cotran rejected that factual finding and allowed the appeal from the dismissal. The council appealed. The Court of Appeal considered whether the scheme lacked legal authority because no byelaws had been made, and whether the county court appellate judge was entitled to interfere with the first-instance finding.

1. Disposition. The appeal was allowed and the decision of District Judge Wright was restored. The parking scheme was lawful despite the absence of byelaws.
2. Per Mr Justice Moses, the duty under section 21(1) of the Housing Act 1985 to exercise general management, regulation and control over the authority’s houses included, or at least carried with it, power to regulate and control parking on the estate. In modern conditions, residents’ parking was inherent in, and conducive and incidental to, the housing-management function.
3. Alternatively, section 111(1) of the Local Government Act 1972 supplied the necessary subsidiary power. Its use required identification of the statutory function to which the proposed act was linked. Parking regulation was calculated to facilitate, and was conducive or incidental to, the section 21(1) function.
4. The byelaw powers in section 23 of the Housing Act 1985 and section 7 of the Greater London Council (General Powers) Act 1975 were concerned with byelaws carrying criminal sanctions. Section 7 extended the byelaw power to parking on land held for the purposes of Part II of the 1985 Act, but did not prevent a common-sense construction of the authority’s ordinary housing-management powers. Lord Justice Buxton agreed and emphasised that the decision was confined to the availability of those powers.
5. District Judge Wright was entitled to find that the vouchers had been tampered with. Judge Cotran had not heard the evidence and was not entitled to overturn a factual finding plainly open to the first-instance judge on the basis that the vouchers might merely have been completed in pencil. The vouchers were therefore invalid. The court declined to rule on the hypothetical issue whether pencil completion alone would invalidate them.
6. The court made no ruling on the wider reach or detailed requirements of the scheme, or on clamping and towing, because the necessary factual findings were absent. Costs were ordered against the Legal Services Commission under section 11, with detailed assessment of the respondent’s funding. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — [2002] EWCA Civ 582: allowed the council’s appeal, restored District Judge Wright’s dismissal and refused permission to appeal to the House of Lords.
• Shoreditch County Court — His Honour Judge Cotran allowed the appeal from District Judge Wright and rejected the finding that the vouchers had been tampered with.
• Shoreditch County Court — District Judge Wright found that the vouchers had been tampered with and dismissed the claim.