Makda, R (on the application of) v The Parking Adjudictor

The passenger exemption in Article 12 of the City of Westminster Traffic Management Order 2002 is not confined to the period after a passenger has physically arrived. It may cover the time reasonably required for a driver and an expected passenger to make contact, or for the driver to establish that the passenger is absent. The controlling question is whether the vehicle waited for no longer than was necessary for the purpose of enabling the passenger to board. That is a question of fact, assessed in the circumstances existing at the time. A passenger’s failure to appear does not automatically remove the exemption. Adjudicators must apply that interpretation when deciding whether a parking contravention occurred.

The claimant, a licensed minicab driver, sought judicial review of two parking adjudicators’ decisions concerning penalty charge notices issued while his vehicle was stopped on double yellow lines. On each occasion he had attended a pre-booked collection point, but the passenger did not appear. His representations and appeals were rejected on the basis that the passenger exemption applied only while passengers were boarding or alighting, and not while waiting for passengers to arrive.

The decisions were reviewed within the parking adjudication system. The claimant challenged the interpretation of Article 12 of the City of Westminster Traffic Management Order 2002 and the resulting application of the exemption.

1. Article 12 exemption. Article 12 permits a vehicle to wait for so long as necessary to enable a person to board. The exemption is concerned with time proximate to the passenger entering or leaving the vehicle. It is not restricted to cases in which the passenger is already visibly present.
2. Meaning of necessity. Where a driver attends a pre-arranged collection point, the time reasonably required for the driver and passenger to identify or contact one another, or for the driver to conclude that the passenger is not present, may be necessary for the purpose of enabling the passenger to board. Whether the period was necessary is a question of fact depending on the circumstances at the time. Waiting while early for the appointment, or generally waiting for a late passenger, will ordinarily fall outside the exemption.
3. Error of law. The adjudicators treated the exemption as drawing a rigid distinction between waiting while passengers boarded and waiting for passengers to arrive. They failed to ask whether the period during which the vehicle was stationary was necessary to enable the intended passenger to board. That involved an error of law. The claimant’s evidence had not been expressly rejected, and its significance under the correct construction had not been considered.
4. Relief. The review decisions and the underlying appeal decisions were quashed. The appeals were remitted with a mandatory order that they be allowed, with the penalty charges to be cancelled through the appropriate consequential direction.
5. Costs. Applying the principles identified in Davies v Birmingham Deputy Coroner (No 2), the parking adjudicator had assisted the court in a neutral, non-adversarial capacity. It was therefore inappropriate to order the adjudicator to pay the claimant’s costs.

• Parking adjudicators: The claimant’s representations and appeals against both penalty charge notices were rejected. Reviews within the parking adjudication system were also unsuccessful.
• High Court (Administrative Court): Permission had initially been refused on the papers but was granted on renewal by Judge Thornton. Mr Justice Burnett allowed the judicial review, quashed the relevant decisions and remitted the appeals with directions that they be allowed.