Shiva Ltd v Transport for London

Under the statutory parking-enforcement scheme, a reasonable belief that a contravention has occurred may justify issuing a penalty charge notice. It does not, without more, authorise removal of the vehicle. Removal is a distinct decision requiring separate consideration of the information reasonably available at the time, including information indicating lawful parking. An earlier notice cannot be treated as conclusive authority for removal where the position has changed. The Court of Appeal left open the wider question whether the Road Traffic Act 1991 affects the construction of the earlier removal provisions. On the facts, removal was unlawful because the officers ignored the assertion that the vehicle was being used for lawful loading.

Shiva Ltd sued Transport for London and NSL Ltd, sued as NCP Services Ltd, after a vehicle was issued with a penalty charge notice and removed from a red-route loading bay. Transport for London later accepted that no parking contravention had occurred and repaid the charges, but maintained that removal had been lawful.

The county court dismissed the claim. Jack J dismissed the appeal in the High Court. The Court of Appeal granted a further appeal concerning whether removal required an actual contravention or merely a reasonable belief, and whether the penalty charge notice itself authorised removal when the owner asserted that lawful loading was taking place.

1. Appeal allowed. Carnwath LJ gave the judgment, with Jackson LJ and Lord Neuberger MR agreeing. Damages were ordered in the agreed sum of £216.25, plus interest.
2. The powers to issue a penalty charge notice and to remove a vehicle are distinct. Under section 66 of the Road Traffic Act 1991, a notice may be issued where the parking attendant reasonably believes that a penalty is payable. The owner may subsequently establish that no contravention occurred, leading to cancellation and repayment. That scheme does not make the notice itself sufficient authority for removal under section 99 of the Road Traffic Regulation Act 1984 and regulation 5A of the Removal and Disposal of Vehicles Regulations 1986.
3. The Court considered, but did not finally determine, whether removal under section 99(1)(a) and regulation 5A requires an objectively established contravention or may rest on a reasonable, considered judgment made at the time. If the latter approach applies, the judgment must be based on an assessment of all the circumstances and the information reasonably available to the officer. Carey v Chief Constable of Avon [1995] RTR 405 provided assistance by illustrating the need to ask the correct statutory question. Clark v Chief Constable of West Midlands [2002] RTR 405 reinforced the statutory distinction between the different limbs of section 99(1).
4. The Court was doubtful that the Road Traffic Act 1991 could, without stronger authority, be used to reinterpret the earlier provisions or regulation 5A so as to make a reasonable belief sufficient for removal.
5. In any event, the officers had to consider the changed information before proceeding with removal. By that stage, Mr Gray had asserted that loading was taking place, and the information later accepted by Transport for London was available to the officers. They ignored it and relied solely on the earlier penalty charge notice. That made the removal unlawful.

• Court of Appeal (Civil Division): allowed the appeal and ordered damages of £216.25 plus interest. [2011] EWCA Civ 1189
• High Court of Justice, Queen’s Bench Division: Jack J dismissed the appeal from the county court.
• County Court: HHJ Welchman dismissed the claim.