Walmsley, R (on the application of) v Lane & Anor

A congestion charge licence must be treated as relating to the vehicle identified by the registration mark supplied when payment is made. A genuine mistake in that mark may therefore leave the statutory penalty payable. However, the adjudicator’s power to give the charging authority such directions as are appropriate under regulation 16 of the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001 includes a discretion to cancel a penalty in suitable mitigating circumstances. An adjudicator who treats that power as unavailable misdirects himself. Unreasonable delay may breach Article 6, but relief requires a discernible loss caused by the delay.

The claimant paid the congestion charge for two days on which she drove her Ford Puma in the charging zone. When paying online, she entered the registration mark of her previous vehicle. Transport for London issued two penalty charge notices. Its adjudicator dismissed her appeal, accepting that the mistake was genuine but considering liability strict and the penalty incapable of mitigation. A review was refused.

The claimant sought judicial review, arguing that she had paid the charge, that the adjudicator had discretion to cancel or reduce the penalties, and that the delay in determining her appeal infringed Article 6. The central issues were whether the scheme required payment by reference to the precise registration mark and whether the adjudicator had power to grant relief despite the technical contravention.

1. Registration mark. The wording of article 6(5) of the Greater London (Central Zone) Congestion Charging Order 2001 was unclear. The contemporaneous explanatory notes were admissible as an aid to interpretation. The scheme nevertheless had to be construed as requiring the purchaser to specify the registration mark of the vehicle to which the licence related. Any other construction risked making the scheme unworkable. The claimant was therefore technically liable to penalty because the licence identified W616 JBF, whereas the vehicle used was W616 OJC.
2. Adjudicator’s discretion. Regulation 16 of the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001 empowered an adjudicator, after considering the representations, to give the charging authority such directions as he considered appropriate. That wording conferred a discretion broader than merely deciding whether a ground in regulation 13(3) had been established. The adjudicator could direct cancellation of a penalty where the charge had in substance been paid and the registration error was genuine. The first defendant had therefore misunderstood his powers, and his decision was quashed.
3. The conclusion did not require relief in every case. Repeated registration errors, or payment for one vehicle followed by use of another, could justify the ordinary penalty.
4. The delay in determining the appeal was unreasonably long and infringed Article 6. It caused no significant or discernible loss, however, because the increased sums resulted from failure to pay within the applicable discount and payment periods, not from exercising the appeal right. No remedy was granted on that ground.
5. The court also observed that any discretion exercised by Transport for London to waive penalties had to be exercised rationally, consistently and by reference to relevant differences between cases. The scheme and penalty notices should be made clearer.

Not an appeal. The judgment concerned an application for judicial review of an adjudicator’s decision dated 20 August 2004 and a subsequent refusal to review it.