Halton Borough Council application to overturn D. Curzon Mersey Gateway Bridge appeals rejected

Friday 17 May 2019

 

Halton Borough Council (HBC) applied to the Traffic Penalty Tribunal (TPT) to revoke the decision of Adjudicator M.F. Kennedy in Curzon v Halton Borough Council (‘Curzon’) to allow an appeal against two Penalty Charges (PCNs) issued for alleged contraventions in crossings made on the Mersey Gateway Bridge.

The application to overturn Adjudicator Kennedy’s decision was considered by Deputy Chief Adjudicator S. Knapp, who refused it, finding that HBC had not established any of the legal grounds that would justify overturning the original decision.

In dismissing the review request, Mr Knapp found that HBC had not established that the findings of Adjudicator Kennedy’s original decision could be described as ‘perverse or irrational, or amounting to an error of law’, as required by legal regulations.

Mr Knapp also stated that HBC failed to provide any new reasons to enforce Mr Curzon’s PCNs beyond its evidence in Curzon; in effect, just reinstating its original case.

Adjudicator Kennedy’s decision allowing Mr Curzon’s appeals therefore still stands in its entirety, for the reasons given in her original judgment (a summary of the decision follows this statement).

The Curzon case has raised significant issues that go to the heart of the Mersey Gateway Bridge charging scheme. These were considered and decided by Adjudicator Kennedy.

The decision is treated as ‘persuasive’ by the Traffic Penalty Tribunal adjudicators.

This means – as in any Tribunal – that there is a presumption that adjudicators will follow the findings and reasoning in Adjudicator Kennedy’s judgment when deciding appeals raising the same issues. Each case is decided on its own merits and evidence, so an adjudicator will explain where different facts or principles apply.

The findings in Curzon will be followed until and unless HBC applies to the High Court for Judicial Review of Adjudicator Kennedy’s decision.

There were a number of cases on hold pending the outcome of this review decision. These will now be dealt with as soon as possible.

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Summary of Adjudicator M.F Kennedy’s decision in
Curzon v Halton Borough Council (Monday 11 March 2019).

Adjudicator Kennedy allowed appeals by Mr Curzon against two Penalty Charge Notices (PCNs) issued by Halton Borough Council (HBC) for alleged contraventions relating to the charging scheme for crossing the Mersey Gateway Bridge. The appeals were allowed, with the adjudicator citing a number of reasons:

Adjudicator Kennedy found that the charges for crossing the Mersey Gateway Bridge are imposed under a Road User Charging Scheme – not a toll scheme.

  • Although it may not make a significant difference to the motorist, who needs to make a payment, there is a difference in law and enforcement between a toll and a road user charge, and the terms are not interchangeable.
  • HBC has created two separate bylaws, each requiring a payment to be made for using the Mersey Gateway Bridge and Silver Jubilee Bridge. The Mersey Gateway Bridge Bylaws 2016 (the ‘2016 Bylaws’) require a ‘toll’ to be paid, whereas the A533 (Mersey Gateway Bridge) and the A577 (Silver Jubilee Bridge) Roads User Charging Scheme Order 2018 (the ‘2018 Order’) requires a ‘road user charge’ to be paid.
  • The two bylaws are made under different legal powers. The 2018 Order was made under the Transport Act 2000, which states, that a road user charge cannot be imposed if tolls are charged with respect to the same road.
  • Adjudicator Kennedy accepted the HBC’s argument that it only imposes the road user charge, and does not enforce payment of the tolls.

The PCNs wrongly stated that the ‘toll’ had not been paid.

  • The PCNs issued to Mr Curzon alleged that he had not paid the ‘required toll’. Therefore, they do not accurately reflect non-payment of a ‘road user charge’.
    • Under the Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013 (‘the 2013 Regulations’),
      a PCN must state the grounds on which the charging authority believes the penalty charge is payable, in contravention of the Road User Charge Scheme Order. HBC should have stated that the ‘road user charge’ had not been paid.
    • Therefore, the PCNs issued to Mr Curzon did not comply with the 2013 Regulations and are defective.

The signs at the Mersey Gateway Bridge have not been authorised to convey the requirement to pay a road user charge.

  • The Department for Transport (who must authorise all road signs) authorised signs for the toll scheme. HBC applied for the signs to be authorised for the tolling scheme and enclosed the Mersey Gateway Bridge Byelaws 2016 (which imposes the liability to pay a ‘toll’) with the application.
  • It follows that the signs do not have the effect of conveying to road users the requirement to pay the ‘road user charge’.

 

HBC failed to consider Mr Curzon’s representations. HBC cannot in law rely upon delegating consideration of representations and exercise of discretion to their agent, Emovis Operations Mersey Limited (Emovis), using the brand name of ‘Merseyflow’.

  • The 2013 Regulations place a statutory duty on the charging authority, HBC, to consider the representations made in response to a PCN. Mr Curzon’s representations were dealt with by Emovis, which sent the Notice of Rejection.
  • Adjudicator Kennedy was satisfied that the representations made by Mr Curzon were not considered directly by any member of HBC or HBC staff. Instead, all considerations were made by Emovis. Emovis is a third-party contractor engaged by HBC and the Mersey Gateway Crossings Board Limited (MGCBL) to manage the entire Mersey Gateway project, including the charging scheme.
  • A local authority may, broadly, delegate administrative functions to a contractor; however, it may not delegate its judicial functions. While a contractor may investigate factual matters raised in representations to inform the charging authority, the decision whether to accept or reject a representation – or determine that there are compelling reasons to waive a penalty charge – is a quasi-judicial function that must be performed by the charging authority.
  • HBC was not entitled to delegate their power of discretion to Emovis, or any other non-authority third party.

Read the full decision wording here.

 

About the Traffic Penalty Tribunal

The Traffic Penalty Tribunal (TPT) decides appeals against penalties issued for traffic contraventions by charging authorities in England (outside London) and Wales.

Cases the TPT sees include appeals against civil enforcement penalties issued by local authorities for parking, bus lane, littering from vehicles and (in Wales only) moving traffic contraventions, as well as appeals arising from road user charging enforcement.

The Road User Charging schemes for which the TPT see appeals for include the:

  • Dartford-Thurrock River Crossing, where the charging authority is the Secretary of State for Transport.
  • Mersey Gateway Bridge Crossing, where the charging authority is Halton Borough Council.
  • Durham Road User Charge Zone, where the charging authority is Durham County Council.

TPT adjudicators are wholly independent lawyers, appointed with the consent of the Lord Chancellor, and are supported by a small team of administrative staff, who provide customer support. The Chief Adjudicator is Caroline Sheppard OBE.

The TPT is funded by a Joint Committee of over 300 local authorities: Parking and Traffic Regulations outside London (PATROL). PATROL fulfils a statutory duty to make provision for the independent adjudication.

  • The TPT is the UK’s first online tribunal, with cases processed fully online through the award-winning Fast Online Appeals Management (FOAM) system.
  • FOAM utilises digital tools, such as an evidence upload portal, instant messaging and Live Chat.
  • Appellants not able to get online receive Assisted Digital support from the TPT administrative team.
  • The TPT decides appeals for ~25,000 cases a year, arising from both civil enforcement and road user charging enforcement.