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#Post#: 72023--------------------------------------------------
Shopping for Citrullus lanatus. Watermelon that is
DIR By: stamfordman
Date: May 18, 2025, 6:36 am
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I think members will enjoy this London tribunal case from
yesterday that was reviewed. Includes a ticking off of Merton
and the Latin for watermelon.
And Citrullus lanatus doesn't have to be preordered.
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Case reference 2250071613
Appellant Mazhar Ali
Authority London Borough of Merton
VRM LG20ZTM
PCN Details
PCN MT70991185
Contravention date 03 Nov 2024
Contravention time 12:00:00
Contravention location West Barnes Lane
Penalty amount GBP 130.00
Contravention Parked restricted street during prescribed hours
Referral date -
Decision Date 09 Apr 2025
Adjudicator Sean Stanton-Dunne
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to
Owner.
Reasons Mr Ali was scheduled for a personal hearing by video
link today but he has not attended and so the appeal is being
decided on the evidence presented.
The CEO's images show that Mr Ali's car was stopped on double
yellow lines, indicating a continuous no parking and no waiting
restriction. Mr Ali has explained that he stopped to buy a
watermelon for his mother who is in palliative care and was
suffering with mouth ulcers.
The CEO observed the car for only two minutes before issuing the
PCN. I accept Mr Ali's evidence. The purchase of a single item
can fall within the exemption for loading. There is no
distinction between (i) picking up an order and paying for it at
the checkout and (ii) picking up an item and paying for it. A
watermelon is normally sizeable and weighty. I am satisfied that
the loading exemption can apply in this case in the same way
that it might apply to buying a tin of paint.
Decision Date 17 May 2025
Adjudicator Jack Walsh
Previous decision Appeal allowed
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to
Owner.
Reasons The enforcement authority (EA) seeks a review of the
decision of Adjudicator Mr. Stanton-Dunne on 9 April 2025 to
allow the appellant's appeal. The ground upon which the EA seeks
a review is that the 'interests of justice' require it. The EA
says, in effect, that the Adjudicator made an error of law by
finding that the 'loading' exemption applied in circumstances in
which the vehicle was parked whilst Mr. Ali selected a product -
a watermelon - and paid for it, before then loading it into his
vehicle. The EA says that the time spent selecting and paying
for a product cannot be time during which the vehicle was
engaged in loading or unloading such that the exemption can
apply.
The relevant parts of the Adjudicator's decision are as follows:
"The purchase of a single item can fall within the exemption for
loading. There is no distinction between (i) picking up an order
and paying for it at the checkout and (ii) picking up an item
and paying for it. A watermelon is normally sizeable and
weighty. I am satisfied that the loading exemption can apply in
this case in the same way that it might apply to buying a tin of
paint."
It is not - nor could it be - suggested by the EA that it did
not have a fair opportunity to present its case to the tribunal,
or that the Adjudicator simply overlooked some evidence or
submissions. What the EA appears to be saying is that, in
finding that the loading/unloading exemption applied, he either
misdirected himself as to the law or reached a decision that was
not reasonably open to him. It was, say the EA in effect, a
decision that, in public law terms, is either vitiated by an
error of law or was Wednesbury unreasonable.
The EA also adds in its request for a review:
"If the Adjudicator does not feel they are in a position to be
able to reconsider their original
decision then the council ask where it states in legislation
that loading and/ or unloading
includes the time to pick out and purchase items."
I find this to be a somewhat disingenuous remark. The EA well
knows that the loading/unloading exemption is not to be found in
legislation, and I do not consider this purported request to be
directed to the relevant legislation to be genuine. That rather
sarcastic addition to the application for a review is not to the
credit of the EA.
The answer to this application is straightforward. In R(TfL v.
London Tribunals (Environment and Traffic Adjudicators) [2023]
EWHC 2889 (Admin) the High Court considered the power of this
tribunal to entertain reviews of its own decisions on the very
ground selected by the EA in this case, namely the 'interests of
justice'. The judge, Mr. Justice Swift, applied dicta in Trimble
v Super Travel Ltd. [1982] ICR 440, which concerned the powers
of the Employment Tribunal (ET). In Trimble, the Employment
Appeal Tribunal held that the ET could only review one of its
decisions 'in the interests of justice' where "due to an
oversight or to some procedural occurrence one or other part[y]
can with substance say that he has not had a fair opportunity to
present his argument on a point of substance".
Swift J in TfL held, in circumstances in which the review sought
by TfL was also on the basis that the decision of the original
adjudicators was wrong in law:
"26. That same principle of finality [as in Trimble] means that
the Chief Adjudicator was wrong to conclude that a review on the
interests of justice ground could consider the legality of an
adjudicator’s decision applying the principles relevant on an
application for judicial review. Properly understood, paragraph
12 of Schedule 1 to the Appeal Regulations provides no such
jurisdiction. Decisions of adjudicators are susceptible to
judicial review. If the losing party wishes to challenge a
decision on the basis it was wrong in law the correct route is
by application for judicial review to this court, not an
application under paragraph 12 for a review on the interests of
justice ground.
27. In this case the Chief Adjudicator ought to have refused
Transport for London’s application for review under paragraph 12
because the interests of justice ground for review does not
permit review on the basis that the decision in question was
wrong in law..."
The position is therefore clear, based on the above paragraphs
in a decision of the High Court by which - whether I agree with
it or not - I am bound. It is simply not open to me to entertain
this application for a review on the basis put forward by the
EA. Rather, its remedy is to apply for judicial review.
I should also add that, even if I had the power to review the
decision, I would not have exercised my discretion to do so. It
is unlikely that Mr. Stanton-Dunne, a very experienced
adjudicator of this tribunal, did not have in mind when making
the decision the long-standing principles from the case law on
the loading/unloading exemption. The time spent on selecting and
purchasing the watermelon can only have been relatively brief in
the context of the overall time for which the vehicle was
waiting. It is likely to have been considerably less than the
time spent on some of the types of activities ancillary to
actual loading that have been permitted in the case law (see
Jane Packer Flowers Limited v. LB Westminster (Case Reference
1960215927) and the cases referred to therein). It seems to me
that Mr. Stanton-Dunne was entitled to take judicial notice of
the fact that fruits of the species Citrullus lanatus can indeed
be "sizeable and weighty" so as to justify, in principle at
least, the use of the loading/unloading exemption.
On either basis, I decline to interfere with the decision.
I cannot leave this case without commenting on what appears to
be the rather odd decision of the civil enforcement officer not
to issue the PCN for parking on a road with one or more wheels
other than on the carriageway. That contravention is very
clearly made out and, with its much more limited
loading/unloading exemption, would likely have avoided the
debate that has occurred in this appeal and review application.
#Post#: 72094--------------------------------------------------
Re: Shopping for Citrullus lanatus. Watermelon that is
DIR By: Hippocrates
Date: May 18, 2025, 2:32 pm
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At least a tin of paint has a handle.
#Post#: 72107--------------------------------------------------
Re: Shopping for Citrullus lanatus. Watermelon that is
DIR By: mickR
Date: May 18, 2025, 4:04 pm
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Good job it wasn't a tin of glue, then the EA would have been in
a sticky situaion
#Post#: 72149--------------------------------------------------
Re: Shopping for Citrullus lanatus. Watermelon that is
DIR By: roythebus
Date: May 19, 2025, 5:55 am
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If he'd got 4 tins of paint, he would also have fork handles? :)
#Post#: 72331--------------------------------------------------
Re: Shopping for Citrullus lanatus. Watermelon that is
DIR By: Hippocrates
Date: May 20, 2025, 5:31 am
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This was filmed after a rather large fish dish. 8) Can't wait
to get back to the Plane Tree.
HTML https://youtube.com/shorts/z1meJoYyQKw
#Post#: 72360--------------------------------------------------
Re: Shopping for Citrullus lanatus. Watermelon that is
DIR By: H C Andersen
Date: May 20, 2025, 8:47 am
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And Citrullus lanatus doesn't have to be preordered.
IMO, if this decision was judicially reviewed then you'd find
that Merton would succeed.
Something's got to give when the body charged with adjudication
makes decisions at variance with the law(and IMO it is) and then
cites the quoted case as a means of avoiding righting what is a
clear wrong as a result of which the already overloaded courts
are left to sort out the mess and the council taxpayers to fund
the bill.
#Post#: 72387--------------------------------------------------
Re: Shopping for Citrullus lanatus. Watermelon that is
DIR By: stamfordman
Date: May 20, 2025, 9:40 am
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--- Quote from: H C Andersen link ---
>
> And Citrullus lanatus doesn't have to be preordered.
>
> IMO, if this decision was judicially reviewed then you'd find
that Merton would succeed.
>
> Something's got to give when the body charged with
adjudication makes decisions at variance with the law(and IMO it
is) and then cites the quoted case as a means of avoiding
righting what is a clear wrong as a result of which the already
overloaded courts are left to sort out the mess and the council
taxpayers to fund the bill.
>
--- End Quote ---
On what grounds do you think a judicial review would succeed.
#Post#: 72401--------------------------------------------------
Re: Shopping for Citrullus lanatus. Watermelon that is
DIR By: H C Andersen
Date: May 20, 2025, 10:57 am
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That the decision was wrong in law.
The only basis for the review failing IMO was that the 'in the
interests of justice' grounds do not encompass errors in
applying the law, such matters are to be referred for
determination to JR.
#Post#: 72411--------------------------------------------------
Re: Shopping for Citrullus lanatus. Watermelon that is
DIR By: stamfordman
Date: May 20, 2025, 11:34 am
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--- Quote from: H C Andersen link ---
>
> That the decision was wrong in law.
>
--- End Quote ---
Yes I realise that but why.
#Post#: 72430--------------------------------------------------
Re: Shopping for Citrullus lanatus. Watermelon that is
DIR By: andy_foster
Date: May 20, 2025, 12:35 pm
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As an outsider, going shopping is not loading.
Collecting a pre-ordered item is loading.
Paying for and collecting for a pre-ordered item is loading.
The argument that selecting and paying for a single item would
take no longer than paying for and collecting a pre-ordered item
and therefore amounts to the same thing equates the specific
exemption for loading to an exemption for loading or anything
else that takes a similar amount of time.
It's like saying that if a proficient cyclist can cycle at 30mph
on a non-mechanically propelled vehicle, and does not require a
licence or insurance because they are only required for
mechanically propelled vehicles, anyone can ride a moped without
a licence or insurance because they don't go over 30mph.
Also, the High Court has a propensity for interpreting
ambiguous, and also not so ambiguous, terms in favour of the
establishment. IMHO the "interests of justice" point was the
only thing that Swift J got right in that judgment (and he had
plenty of authorities to spare on that point).
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