Walmsley v Transport for London & Ors

An adjudicator hearing an appeal under regulation 16 of the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001 may determine only whether a prescribed ground in regulation 13(3) has been established and give consequential directions. The adjudicator has no general power to cancel or remit a penalty charge on mitigating grounds outside those statutory grounds.

The charging authority may nevertheless decide not to pursue or enforce a penalty. That discretion must be exercised lawfully. A public authority exercising such a widespread discretion should adopt and publish a policy, applying it consistently but flexibly. Whether adjudicators may determine a collateral challenge was left open.

The claimant paid congestion charges for two days but, through a genuine keying error, entered the registration mark of her previous vehicle. Transport for London issued penalty charge notices. Her representations under regulation 13(3)(b) were rejected, and the adjudicator dismissed her appeal because the charge had not been paid for the vehicle’s specified registration mark.

On judicial review, Stanley Burnton J held that the adjudicator could direct cancellation of the notices on mitigating grounds and quashed the decision, remitting the appeal: [2004] EWHC 896 (Admin). TfL appealed. The central issue was whether regulation 16(2) conferred a wider discretion than the statutory grounds in regulation 13(3).

1. Appeal allowed. The judge below was wrong to hold that the adjudicator had misunderstood his powers. The adjudicator could not direct cancellation of penalty charge notices where the claimant had failed to establish a ground in regulation 13(3).
2. Regulation 16(1) creates an appeal only from a decision under regulation 13(6) that a ground in regulation 13(3) has not been established. Regulation 16(2) confines the adjudicator’s consideration to the original and additional representations made on those prescribed grounds.
3. The power to give directions which the adjudicator considers appropriate does not confer a general power to substitute the adjudicator’s view for the charging authority’s decision whether to pursue a penalty. Directions may be given where the relevant statutory ground is established. In that event, regulation 14(1) requires cancellation, while regulation 14(2) permits a fresh notice.
4. Matters outside regulation 13(3) may be put to TfL as requests for discretionary waiver or non-enforcement. TfL has a general power to refrain from pursuing or enforcing a penalty, and its decision may be challenged by judicial review in an appropriate case. The court did not decide whether an adjudicator may entertain a collateral challenge.
5. Lord Justice Sedley added that a public authority exercising a widespread waiver policy should make it public. The policy should promote consistency without fettering discretion and should allow for exceptional cases. Lord Justice Keene expressly agreed with both judgments.

The appeal was allowed. There was no order as to costs.

• Court of Appeal (Civil Division): Appeal by Transport for London allowed. The order below was reversed insofar as it held that the adjudicator had a wider discretion and remitted the matter.
• High Court, Administrative Court: Stanley Burnton J quashed the adjudicator’s decision and remitted the regulation 16 appeal after holding that regulation 16(2) permitted cancellation on mitigating grounds: [2004] EWHC 896 (Admin).
• Adjudicator/PATAS: The adjudicator dismissed the appeal and confirmed that decision on internal review.