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PostPosted: Thu Jan 27, 2011 10:41 pm 
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Case No. CO/4743/2009
Neutral Citation Number: [2010] EWHC 3392 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Date: Monday, 29th November 2010
B e f o r e:
MR JUSTICE BURNETT
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Between:
THE QUEEN ON THE APPLICATION OF MAKDA
Claimant
v
THE PARKING ADJUDICATOR
Defendant
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Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr C Morrison Appeared On Behalf Of The Claimant
Mr I Rogers (Instructed By Patas) Appeared On Behalf Of The Defendant
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J U D G M E N T
1. MR JUSTICE BURNETT: This is an application for judicial review of two decisions of parking adjudicators, each upheld on review within the parking adjudication system. The claimant, Mr Makda, is a licenced minicab driver who operates through an office in Frith Street, London W1. Licenced minicab drivers, unlike those licenced to drive Hackney carriages, may not tout for work but must pick up only pre-booked fares.
2. At about 9.17 in the evening of 25 June 2008 Mr Makda drove to Dean Street, London W1, in response to a booking that had been made at 9.03 by telephone to the office. The customer who had booked the journey was called Laura. She wished to be taken to Streatham Place SW2. Mr Makda pulled up close to the junction with Dean Street, where he had been told that the passenger would be waiting. He did not leave his car. She, however, did not show up. Having established that she was not there, Mr Makda very shortly thereafter drove off.
3. A CCTV camera operator watched the car in real time for a total of 1 minute 30 seconds. Mr Makda was stopped on double yellow lines. The operator issued a parking charge notice for £120 subject to a reduction if paid within 21 days.
4. An almost identical event occurred on 3 July 2008 at about 9.25. On that occasion the CCTV camera operator watched Mr Makda for about 1 minute 20 seconds. Again, Mr Makda was responding to a telephone booking made to his control office. That booking had been made about 3 minutes beforehand and asked for a cab immediately in Dean Street. The destination was Kingsland High Road, E8. The passenger on this occasion was noted in the office as Noella Bible. Again, she did not show up and a parking charge notice was issued by the camera operator.
5. Parking restrictions in the City of Westminster are enforced by Civil Enforcement Powers, deriving from the Traffic Management Act 2004. Parking on a double yellow line used to be a criminal offence in Westminster, but this has not been the case for many years. The civil contravention is created by Article 5(1) of the City of Westminster Traffic Management Order 2002. It provides:
"No person shall cause or permit any vehicle to wait during the prescribed hours in any restricted street except subject to the provisions of the next paragraph for so long as may be necessary for the purposes of delivering or collected goods or loading or unloading a vehicle at premises adjacent to the street."
The exemptions relating to loading are then further refined within Article 5.
6. Article 12 provides the first of a number of further exemptions from parking restrictions. As material, it reads:
"Nothing in Article 5 of this order shall render it unlawful to cause or permit a vehicle to wait in any restricted street for so long as may be necessary for the purpose of enabling any person to board or alight from the vehicle or to load there on or unload there from his personal luggage."
7. The Civil Enforcement of Parking Contraventions (England) Representations and Appeal Regulations 2007 allow someone served with a penalty charge notice, or the owner of a vehicle concerned, to make representations to the local authority why he should not be liable to pay the charge. The grounds of such representations are set out in regulation 4(4). It is sufficient to record that one of those grounds is "that the alleged contravention did not occur."
8. A local authority is obliged to consider any representations made and respond to them. If the representations are not accepted, the reasons must be set out in a "Notice of Rejection" which is provided for by Regulation 6 of the 2007 Regulations.
9. Following the rejection of representations, the person concerned has a right of appeal under Regulation 7 to the Parking Adjudicator. The grounds of appeal are the same as those upon which representations could be made to the Local Authority. An adverse decision from the Parking Adjudicator may be reviewed by another parking adjudicator. The nature and extent of such a review jurisdiction is set out in paragraph 12 of schedule 1 to the 2007 Regulations.
10. The scope of that review power has not, it would seem, been the subject of detailed consideration, either by parking adjudicators themselves or in this court. As we shall see, Mr Makda was unsuccessful in his representations, his appeal and also on review.
11. The primary argument advanced by Mr Makda in these proceedings through his counsel, Mr Morrison, is that the exemption set out in Article 12 applied in the circumstances as described. In consequence, Mr Morrison submits that the adjudicators, both when considering the appeal and on review, were wrong to refuse to set aside the notice.
12. I should note that there was a subsidiary argument founded upon guidance issued by the Council, which suggests that camera operators cannot issue parking charge notices unless they observe a vehicle waiting for more than 2 minutes. That argument is not pressed in this application, not least because the guidance to which reference is made post dates the alleged contraventions with which I am concerned.
13. The sequence of events in respect of the first notice was as follows: the penalty charge notice itself was dated 2 July 2008. It was served by post. It stated that a camera operator was observing the vehicle in real time at 21.17 parked on double yellow lines in Dean Street. A rather grainy still appears on the notice. Mr Makda made representations to Westminster City Council, the essence of which were as follows:
"I am a minicab driver by trade. On the day in question I had a fare from Dean Street to Streatham Place SW2. I enclose the printout for the job, which was booked for 21.15 hours."
Westminster rejected the representations by letter dated 15 July 2008. The substance of that letter was as follows:
"I have considered all of the information you have provided but I am unable to cancel the PCN. This letter is therefore a formal notice of rejection to your representations. The PCN was issued because the vehicle was seen parked in a street when parking restrictions were in force. Yellow lines at the edge of the road mean that there are parking restrictions which apply to the entire road. The vehicle was observed by a CCTV operator, but no picking up/setting down activity was observed. The picking up/setting down exemption does not permit the vehicle to wait for passengers at any time. Whilst appreciating that you drive a minicab, I must, however, advise that there is no exemption for you to wait for passengers. The exemption means that passengers must be ready to board the vehicle upon its arrival. If passengers are not ready, the vehicle must move on to a legal parking space. The evidence you supplied shows a 2 minute wait from the appearance time. This is not permitted. The PCN was therefore correctly issued."
14. The author of the letter indicates that his understanding of the exemption is that it allows for no waiting at all for a passenger to show up. The clear impression given by this letter is that no tolerance is allowed for a passenger who may not know the identity of the driver or a driver who may not know the identity of a passenger to establish contact.
15. Mr Makda's representations to Westminster in respect of the second penalty charge notice which is dated 11 July 2008 were, for practical purposes, in the same terms. So too was the response from Westminster City Council, except that there was of course no reference to the timing of the first incident. I should say that the print outs from both jobs which were produced in due course by Mr Makda to the adjudicator identify the passengers in the way that I have described.
16. Mr Makda appealed to the parking adjudicator in respect of both penalty charge notices. As regards the first, he wrote this to the adjudicator:
"I work as a minicab driver. On the day in question I had a fare booked for 21.15 and arrived at the appointed time to pick up my passenger. The normal practice is for me to arrive at the designated place at the appointed time and the pre-booked passenger would come up to my window to confirm their name and destination. I cannot approach people to the street, as this would constitute touting. I agree with the council's view in their notice of rejection that the passenger should have been ready when I arrived. Unfortunately she was not there at the appointed time. There were some people at the car window, but none of them was the passenger that had booked the journey. As is sometimes the case, some passenger would book a fare and then decide not to travel or find and take a taxi without even calling my office to cancel. I absolutely refute the council's assertion that I was waiting for the passenger. I arrived at the booked time to pick up the passenger and it just happened that she was not there when I arrived."
The account that Mr Makda gave in respect of the second occasion on which he had been issued a penalty charge notice was similar, save that he gave no indication that people were at the window of the vehicle.
17. Both appeals were considered on paper by the same adjudicator, Edward Houghton. His reasons for rejecting the first appeal were these:
"the appellant's vehicle was waiting in a restricted street. This is unlawful unless some legal exemption applies, although there is an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle. This does not extend to waiting for the passenger to arrive, inconvenient though this may be for chauffeurs and private hire drivers. The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully."
As far as the second is concerned, he said this:
"It is not in dispute that as the DVD evidence shows, the vehicle was waiting in a restricted street indicated by double yellow lines. The appellant is a minicab driver and was waiting for a pre-booked passenger who was not on time. However, although there was an exemption allowing vehicles to wait whilst passengers board or alight from the vehicle, this does not extent to waiting for passengers to arrive, inconvenient though this may be for chauffeurs and private hire drivers. The vehicle was therefore in contravention and it cannot be said that the PCN was issued other than lawfully."
Mr Houghton went on to indicate that the circumstances were such that the council might consider exercising discretion to cancel the penalty. That suggestion fell on deaf ears.
18. As I have already indicated, both decisions were reviewed. The review of the first noted that the vehicle was visible in the CCTV footage for something over a minute and 20 seconds with no sign of anyone getting into the car. The second review was dealt with rather differently. Unlike the adjudicator considering the first review, who engaged with the facts and circumstances of the alleged contravention, the second reviewing adjudicator considered that a review was not appropriate because in essence Mr Makda was simply seeking to challenge the factual finding.
19. Article 12 of the 2002 order allows a vehicle to wait:
"for so long as may be necessary for enabling any person to board or alight from the vehicle and to load thereon or unload there from his personal luggage."
This provision admits of no difficulty in interpretation in almost all circumstances in which private drivers, Hackney carriage drivers or minicab drivers stop to let someone out of the car. The governing factor is plainly how long it takes to get out of the car, to unload the various things that the passenger has with him and then, in the case of a Hackney carriage or minicab, to pay. Similarly, in most cases of picking up, the driver knows his intended passenger or in the case of a Hackney carriage, is flagged down to the side of the road. In those circumstances the reverse process occurs. There is unlikely to be any difficulty in considering the facts to decide whether the vehicle concerned was stopped for longer than was necessary for those activities to be completed.
20. Even in cases where the driver and passenger are unknown to each other but the passenger is at the pick up site, ready and waiting, contact is likely to be made very quickly indeed. The time taken to make such contact in those circumstances, would, in my judgment, be necessary for the purpose of enabling that person to board the vehicle. But what if a driver pulls up expecting to find a passenger waiting for him but the passenger fails to show up or, as is not uncommon, has made other arrangements?
21. In the skeleton argument lodged on behalf of Mr Makda by his solicitors, it was submitted that any waiting for a pre-booked passenger is exempted by Article 12. It is fair to say that Mr Morrison has not supported that submission in oral argument. It is not a submission that I can accept. It overlooks two important features found within Article 12, one of which is explicit and the other which is clearly implicit from its context.
22. The explicit feature within Article 12 is the concept of necessity. So, for example if a driver were early for a rendezvous it could hardly be said to be necessary to wait in a restricted area until the pick up time. Neither would it in general terms be necessary for a driver to wait for a passenger who was late. A fresh rendezvous could, in almost all modern circumstances, be arranged. If that were not possible, then, using language which is perhaps not entirely apt nowadays, the driver would have to go round the block.
23. The implicit feature is in my judgment that the exemption in Article 12 is concerned with a time which is proximate to the getting into or the getting out of the vehicle.
24. For those reasons I do not accept the bold submission found in the skeleton argument. I deal with it despite Mr Morrison's not supporting it, simply to make the position clear in the event that similar arguments are advanced in other cases.
25. Mr Morrison has advanced an alternative construction. It is essentially this: that Article 12 is concerned with allowing a vehicle to wait to facilitate the immediate pick up or drop off of passengers. That, as it seems to me, comes closer to identifying the true meaning of Article 12. It is unnecessary to rewrite the language of Article 12, which is not lacking in clarity. In the context of a driver picking up any passenger at a pre determined time and place, it is in my judgment necessary for the purpose of enabling that person to board the vehicle for the driver and passenger to make contact with each other; alternatively for the driver to conclude that the passenger is not there.
26. Whether the time spent on that exercise in any given case was necessary is a question of fact. That will depend upon the myriad circumstances which can apply on the ground at the time. The fact that the passenger fails to materialise does not, in my judgment, mean that the exemption can have no application. The time spent by the driver seeking out his passenger by looking for him from the vehicle or waiting for his passenger to identify the vehicle is capable of being time necessary for the purposes of enabling the person to board his vehicle.
27. The reasons given by the adjudicator in respect of these two notices and supported on review in the instance in which the facts were considered drew a distinction between waiting whilst passengers boarded and waiting for passengers to arrive. Mr Makda "absolutely refuted" that he was waiting for his passenger to arrive on either occasion in a general sense. Although he did not express himself with the clarity with which Mr Morrison has been able to develop arguments, the point that Mr Makda was seeking to make was that he pulled up for as long as was necessary to make contact with his passenger. Having failed to do so, within fairly short order he drove away. I have already noted that in the review decision in which the facts were considered, the absence of a passenger seen on the CCTV was a factor that was given considerable weight.
28. In the course of argument this morning I have had cause to observe that adjudicators have an extremely difficult task. They perform what seems to me to be an important yet very difficult judicial function. It is important because thousands of appeals are adjudicated upon each year in circumstances where many people who appeal parking tickets will have no other cause to become involved with the judicial system. Mr Rogers, who appears for the parking adjudicator this morning, indicated that overall about 80,000 appeals are made each year. The task is difficult because a very large number of those appeals are dealt with on paper. They are dealt with on short submissions made by drivers or vehicle owners. Those submissions are inevitably not informed by reference to the underlying statutory provisions or legal concepts in play. Adjudicators are therefore in one sense expected to be all seeing and all knowing.
29. In the circumstances that are revealed in the papers before me and which I have sought to summarise, the subtlety of the argument being advanced by Mr Makda does not appear to have been fully appreciated by the adjudicators concerned. That is not altogether surprising and should not be taken as any real criticism.
30. However, taking the reasoning in the round, it is clear that Mr Makda's evidence was not explicitly rejected. The impact of his evidence on the true interpretation of Article 12 was similarly not explored in the decisions to which I have referred. It does not appear that the underlying interpretation of Article 12 which was being applied by the adjudicators accorded with the meaning I have sought to give it in the course of this judgment. That being the case, in the course of both decision making processes there was an error of law.
31. The question was not asked whether the time during which Mr Makda's vehicle was seen to be stationary in Dean Street was necessary for the purposes of enabling his passenger to board the vehicle, albeit that on both occasions the passenger failed to show. Mr Rogers helpfully suggested in the course of argument that were I to conclude that there was an error of law in the course of the decision making process, the proper course of action would be to quash both decisions of the adjudicators on review, quash both of the underlying decisions of Mr Houghton in respect of the appeals brought by Mr Makda and issue a mandatory order that in the circumstances both appeals should be allowed on the matters being remitted to the adjudicator. In the circumstances, that is the order I shall make.
32. Mr Morrison, Mr Rogers, have I covered everything in the course of that judgment that needs to be covered?
33. MR MORRISON: Yes, my Lord.
34. MR ROGERS: In the appropriate relief it may be, since Westminster are not here and have not intended to participate at all in this judicial review, it may be appropriate to order further declaratory relief in terms of liability to pay the penalty charges. Would your Lordship be minded to do that?
35. MR JUSTICE BURNETT: If there is a mandatory order that Mr Houghton's decisions on appeal are quashed, that the matters are then remitted to him with an order that he allow the appeals, will that not sort it?
36. MR ROGERS: Yes, what would normally then happen is my Lord might be aware that if the adjudicator allows an appeal he normally has to consider what direction to say make, and standard direction when one allows an appeal is the penalty charge be cancelled.
37. MR JUSTICE BURNETT: You are quite right. The subtleties of the directions had slipped my mind. Could I invite you and Mr Morrison to draft an order and to email it to my Clerk, or the associate later today so that we can have a look at it and ensure we have covered all bases.
38. MR ROGERS: My Lord, yes.
39. MR JUSTICE BURNETT: The critical thing, Mr Rogers, is that as far as Mr Makda is concerned, today should be his last engagement in the process. What is to follow may involve Mr Houghton in a little bit of paperwork, but nothing more than that.
40. MR ROGERS: My Lord yes, I understand that.
41. MR JUSTICE BURNETT: Yes, all right. Thank you very much.
42. MR MORRISON: My Lord, I am instructed to apply for a limited costs order. I am very care aware and I am sure you are too that ordinarily course costs would not be awarded, however I am instructed that until we received the defendant's skeleton argument we understood that they opposed the application for judicial review based on a letter explaining their grounds for the decision, page 165 to 168 of the bundle.
43. MR JUSTICE BURNETT: These are the summary grounds.
44. MR MORRISON: Yes and they renewed that opposition in a further short letter at page 173. I would not suggest that we should get any costs in respect of this hearing and the preparation for it, but my instructing solicitors are keen to secure some form of costs order for the preparation of the skeleton argument, since they understood at that point that the application was opposed. It is a limited order we seek. I appreciate that this is a
45. MR JUSTICE BURNETT: What are you asking for?
46. MR MORRISON: Unfortunately a cost schedule has not been prepared yet, so costs to be summarily assessed at a later date, the proportion of costs between the preparation of the skeleton argument up to the defendant's skeleton argument and the costs incurred after that, in a form of a recovery order.
47. MR JUSTICE BURNETT: All right.
48. MR MORRISON: Thank you.
49. MR JUSTICE BURNETT: Mr Rogers, has the position softened a little?
50. MR ROGERS: My Lord, I don't think it has. The page 163 it looks like the acknowledgement of the service may have it is said that the adjudicator, with the tribunal finding submission at 163, did use the words, unfortunately, "grounds for contesting", but when one reads the summary grounds, if one reads the summary grounds I don't believe there is any softening of the position at all. There is nothing in there that suggests that this is matter in which this decision was contested and nothing which would suggest that the Tribunal was departing from the normal position of the Tribunal being neutral. There is nothing in there contesting the substance of the points, indeed there is a letter written recently, there was recent correspondence suggesting that the claimant thought he was going to be applying for a costs order and the tribunal drew the claimant's solicitor's attention to the case of Davies v Birmingham Deputy Coroner, copies of which I have.
51. MR JUSTICE BURNETT: I am very familiar with it.
52. MR ROGERS: I appreciate your Lordship is very familiar with that. There is no reason to say this case falls outside the Davies guidelines. This is a case where the Tribunal has effectively played a neutral role throughout regardless of the slight differences in wording there.
53. MR JUSTICE BURNETT: I am just looking for the claim form. It is also a fair observation, is it not, that the original claim form did not quite raise the point with the clarity as has later emerged.
54. MR ROGERS: My Lord, yes.
55. MR JUSTICE BURNETT: It is very difficult to make a generalisation, but it looked as though the matter was being challenged on factual grounds fairly substantially.
56. MR ROGERS: Yes, my Lord, and I did not draw up the summary grounds, but I notice that they stated effectively the claim raises no new point, it is essentially a challenge which the adjudicators and the reviewing adjudicator were ones they were entitled to come to on the evidence before them.
57. MR JUSTICE BURNETT: I am trying to remind myself whether the grounds mentioned Article 12 at all in terms.
58. MR ROGERS: It is certainly a case where the extent of the argument was really clear from the skeleton argument, which came later.
59. MR JUSTICE BURNETT: Yes, that is right.
60. MR MORRISON: They did not, my Lord, I am afraid the particular Article we relied upon was not available at the application for permission.
61. MR JUSTICE BURNETT: All right. There is an application made on behalf of Mr Makda by Mr Morrison for costs. This is a case which has, to put it mildly, evolved since it was first issued. The original claim form made no mention of the Article 12 point, which is what has occupied time this morning. The original claim seemed to be founded upon a suggestion that the adjudicator had come to a factual conclusion which was not truly open to him. The acknowledgement of service suggested, in fairly measured terms, that the application would be resisted on the basis that the findings and conclusions were open to the adjudicator. Much has happened since. Permission was originally refused on the papers, but allowed at the renewed oral application before Judge Thornton. He granted permission on the basis of what might loosely be called the guidance point, which has in fact not been pursued.
62. The real focus of this challenge became apparent when an extremely detailed skeleton argument was lodged and served by the claimant's solicitors, dated 19 April 2010. The arguments came into focus at that stage. The adjudicator, in compliance with the order made by Judge Thornton, responded to that skeleton argument. Mr Rogers settled that skeleton argument on 21 May 2010. The skeleton made it plain that the adjudicator was not taking up an adversarial position in these proceedings. In summary, the adjudicator was taking part to assist the court.
63. The nature of the arguments today have happily not engaged very detailed technical aspects of law relating to parking. Occasionally that does happen, and in those circumstances the attendance of the adjudicator can be vital to ensure that the court does not fall into error.
64. The principles in play in respect of the costs application of this sort are well known. They are conveniently set out in the decision of the Court of Appeal in Davies (No.2). that of course was a case which concerned a coroner, but the principles are no different. If a judicial respondent in judicial review proceedings attends to assist the court and does not take up an adversarial position then only exceptionally would be it right for the court to award costs against the judicial officer if the judicial review is successful.
65. In my judgment the parking adjudicator has remained on the right side of the line as far as Davies (No. 2) is concerned throughout these proceedings. Despite Mr Morrison's attractive submission, it is not a case in which it would be appropriate to order the adjudicator to pay the costs or any part of the claimant's costs.




Barrie's Segal’s Comments:

The general rule of law is now confirmed that taxi drivers, minicab drivers and any other drivers are allowed to wait for a long as necessary on single or double yellow lines for the purpose of picking up a passenger and/or their luggage. In the case of black cabs which can be hailed by a passenger in the street it is easy to see what time is taken and in the normal course of events that pickup time is clearly necessary.

The question arises (and this was dealt with by the court): what is the necessary time for a taxi driver or minicab driver to pick up a passenger when they receive a pre-booked cab fare. I have won many cases at the parking adjudicator arguing that there has to be a time period to pick up a passenger starts when the vehicle arrives, the driver looks for his passenger and the passenger comes from their premises, finds the cab and enters the vehicle. My view is that that is all part of the process of waiting for the purpose of picking up the passenger. I am pleased to say that the court confirmed my view.


Background

Nearly all councils have taken the rigorous view ( in my view totally incorrect and illogical) that when a taxi driver or minicab driver receives a pre-booked fare the driver cannot wait at all and that the passenger has to be at the kerb ready to get into the vehicle. Some parking adjudicators have agreed with the councils’ view, but many parking adjudicators have not agreed. Indeed one parking adjudicator said that it was preposterous to suggest that a driver arriving to pick up a passenger should act like a Formula One driver performing a pit stop with the passenger diving into the vehicle and the vehicle taking off.

The High Court has now clarified the law on this issue and has stated that councils are wrong to adopt the position they have taken so far.

The learning judge stated that when a driver arrives at the destination, the time taken looking for the passenger or waiting for the passenger to identify the vehicle are all a necessary part of the process of picking up the passenger - and accordingly any parking tickets issued in those circumstances must be cancelled.

The judge also decided that if a driver arrives at the destination to pick up the passenger but the passenger then cancels the journey this is still nevertheless part of the process of picking up the passenger and accordingly any parking tickets issued in such circumstances must be cancelled..

Barrie Segal’s Final Comment: This is a very important clarification of the law which demonstrates that councils have been unfairly penalising licensed taxi and minicabs[color=blue]
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PostPosted: Wed Nov 11, 2015 8:44 pm 
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Transport Committee
Written evidence from Traffic Penalty Tribunal Adjudicators (PE 11)
1. Introduction

1.1 This submission is sent on behalf of the Traffic Penalty Tribunal (“TPT”) Adjudicators. We have read the questions posed by the TSC and considered that many of the appeals we have heard provide examples of situations that impact on the TSC’s questions. We have made some general observations at the outset and then turned our attention those question we consider it appropriate to address. We would also observe that while the TSC refers to parking enforcement, we assume they will also consider the wider civil enforcement powers for moving traffic, particularly bus lanes outside London.

2. General Observations

2.1 The entire Civil Enforcement Scheme relies on the sensitive and important relationship between regulations, enforcement and policy.

2.2 While new technology has given authorities and contractors an ever increasing ability to detect minor contraventions—even where a vehicle may have come to a halt but not necessarily been stationary—the regulations upon which the vigorous and rigorous enforcement is about, have not been brought up to date or made fit for purpose.

2.3 The Road Traffic Regulation Act 1984 (“RTA”) was itself based on earlier legislation from the 1960s and many of the powers and terminology in relation to parking have not been amended or altered to take into account modern life. It must be remembered that in 1984 there were no mobile phones or sat-navs, and the internet had not been invented. The language that emanates from early legislation has even filtered through into the 2007 TMA regulations, which in places refers to parking as “allowing a vehicle to remain at rest”. (Imagine leaving the house saying, “Darling—where have you allowed the car to remain at rest?”.)

3. Traffic Regulation Orders (TROs)

3.1 Incomprehensible drafting frequently is used in the TROs that underpin the traffic management schemes. The 2006 TSC report considered TROs and made recommendations at pages 94 and 95. These have largely remained unheeded and many authority’s traffic regulations orders are still shambolic and unwieldy.

3.2 It is fundamental to both polices and enforcement that the regulations are expressed in plain, simple English, that the public can read and understand. Fleet operators should be able to check online when delivering is banned and where there are loading bays; disabled drivers should be able to see where there are bays near their destination. Neither group should have to rely on other people at the destination to tell them what the parking rules are.

3.3 It is also the case that the existing TRO and signing regime is not necessarily flexible enough to enable authorities to achieve their objectives. An example of this problem came before the adjudicators in appeals against a city where Friday and Saturday nights became a problem for the local authority and police alike. Most of the city centre was pay and display for daytime parking but the council wished to restrict parking, indeed stopping, altogether on Friday and Saturday nights. The only mechanism that the authority could come up with was to convert the pay and display bays to loading bays on Friday and Saturday nights, although loading and unloading at night would have exacerbated the problems. This was, possibly, a device to ensure that the bays were not used. Contraventions were rigorously enforced by towing away vehicles and inevitably these cases came before adjudicators.

4. Exemptions

4.1 The long-standing standard exemptions in TROs are for loading and unloading (delivering and collecting), and setting down passengers. These have survived through from the earliest road traffic legislation. However in the modern world people pull up to the side of the road for any number of reasons not envisaged in the old exemptions. Many local authorities appear to believe there is no right to bring your car to a temporary halt where there is a waiting restriction in order to deal with one of these problems safely, whereas these modern-day occurrences call for sensible and considerate handling of representations. Adjudicators have, with some alarm, heard council officers say that Members have suggested a “zero-tolerance” policy, which cannot be appropriate.

4.2 A clue to these problems lies in the term “waiting” restriction. This is traditionally implied that the vehicle is there for more than a fleeting moment and has simply been brought to a halt and moved out of the flow of traffic (we have dealt with several appeals where the appellant has had to go through the process when it is apparent from the video that the vehicle is not stationary).

4.3 An example of how exemptions need to be realistically interpreted is the setting down exemption. It is widely recognised today that a driver can no longer just pull up and tell a small child or infant to get out of the car ring the door bell of adjacent premises—they need to be escorted to the custody of another adult. So when setting down an infant with a push-chair and baggage the driver needs to get out of the car and take the child in. This also applies to the infirm and disabled and the very elderly. However there is no formal exemption for this and traditionally setting down was confined to two minutes. Therefore the interpretation of this exemption has had to widen.

4.4 he problem of a traditional narrow interpretation of the setting-down exemption was highlighted in the High Court case of R(Makda) v The Parking Adjudicator [2010] EWHC 3392 (Admin,) where Mr Justice Burnett readily recognised that the setting down and picking up exemption nowadays allows a mini cab, having been booked to collect a fare, to wait or leave the car to find the passenger. This is not the thin edge of the wedge about relaxing parking restrictions but recognises the realities of modern life and the importance of private-hire vehicles and taxis as a public service in the traffic management.

5. Applications to the High Court

5.1 The Makda case raises another important issue—in that case it was the PHV drivers who had apply to the High Court to challenge the adjudicator’s strict interpretation of the exemption. However, an application to the High Court brings the risk of significant costs.

6. Good Vehicles

6.1 Another example is that of goods vehicles. The definition of goods vehicles—that vehicle has been made, constructed or adapted for the carriage of goods, is not thought by authorities to embrace vehicles with 5 doors such as hatch-backs and people-carriers. It is clear that a vast amount of commercial business is now conducted from these types of vehicles which are not truly goods vehicles in the old fashioned sense. And yet many authorities refuse to accept that a vehicle that has the back seat down and is being used for a commercial purpose constitutes a goods vehicle. Therefore there is an urgent need for this to be addressed preferably in legislation that otherwise in better guidance for the government.

7. The Law Commission

7.1 All in all there appears to be an urgent need for a new and fit for purpose Road Traffic Regulation Act. It has long been the view of the adjudicators that parking enforcement both public and private should be subject to the scrutiny of the Law Commission. Whenever we have raised this we have been met with the response that the Law Commission has better things to do than consider something so trivial as parking, yet they have recently produced an important and significant report on taxi and private hire vehicles, which clearly demonstrates the complexity of the area of law relating to road traffic, highways and the functions of local authority.

7.2 The problems that have recently been raised about parking on private land demonstrate clearly the legal complexity of parking enforcement. Parking on private land has always been subject to the common law of tort (trespass), and in the case of privately operated car parks, the law of contract. However the Protection of Freedoms act has endeavoured to impose the quasi-regulatory scheme on the enforcement of undesirable parking on private land. Those provisions were never truly intended to be a tool for car park operators to use but that is a consequence, intended or not. This is a complex area of law that should properly be considered by the Law Commission, in a wider reaching report.

7.3 The Law Commission could also consider whether authorities should be able to serve notices electronically on, say, registered keepers who have indicated on the registration at DVLA that they will accept service in an electronic format. While the regulations permit the tribunals to serve and accept communications from the parties in electronic format, the enforcement authorities are obliged to send all notices by first class post, notwithstanding that the vehicle owner may have submitted representations by email. Not only does this add significantly to the cost (especially with the new rates and size provisions introduced by the Royal Mail), it cannot really be said to be any more reliable than the new forms of email where service can be established by the sender.

8. Guidance

8.1 The Statutory Guidance issued by the Secretary of State under the Traffic Management Act is little more than a recitation of the regulations themselves. The more useful guidance has been issued as Operational Guidance but this does not carry the weight of statutory guidance. Adjudicators have come across numerous occasions where councils do not follow the Guidance in particular and more recently in relation to the use of camera enforcement. It bewilders, and indeed annoys, appellants when the adjudicator has found that a council has disregarded Guidance, but cannot allow the appeal. The only redress is to refer the case back to Chief Executive of the Council, thus delaying the outcome of the case with no certainty for the appellant that they will be absolved from paying the penalty. Not surprisingly, they point to the fact that a small mistake on a driver’s part will result in a penalty being imposed.

8.2 If, for example, camera enforcement is used contrary to Guidance, where there is no loading ban (and we have several such cases) a vehicle that has stopped, say for the driver to consult the sat-nav, in the old days of the CEO, the CEO would see the driver of the vehicle and the driver would see the CEO, and they may have a conversation. This would not result in the CEO issuing a PCN. However if the vehicle is filmed by CCTV and the vehicle owner is sent a PCN a fortnight later, at first they may not remember the brief incident where they pulled over. They then have to make representations to which the authority, more likely than not, will simply say that there is no exemption to pull over to consult the sat-nav. The trouble is that once the PCN is issued many authorities tend to treat it as a “debt” which can only be set aside in exceptional circumstances.

8.3 Have we really come so very far from the principles laid out by Chief Constable Robert Mark (later Sir Robert Mark, Commissioner of the Metropolitan Police) when he introduce traffic warded in Leicester as a pilot in 1961?



Chief Constable’s Office,
Charles Street,
Leicester,
April, 1961.



INSTRUCTIONS TO TRAFFIC WARDENS



1. YOUR PRIMARY ROLE—PREVENTION

You are clearly to understand that your primary function is to help vehicle drivers in streets in the centre of Leicester where waiting is prohibited. You are to do so by:



(i) preventing the unwitting commission of “waiting” offences; and
(ii) informing vehicle drivers of the parking facilities available to them.



Your efficiency will not be determined by the number of prosecutions you initiate, or by the number of fixed penalty forms you issue, but by the freedom of your patrol area from vehicles parked in contravention of the law.



2. COURTESY

You must always be polite to all vehicle drivers notwithstanding that at times you may feel that you are not accorded by them the civility and co-operation that you are entitled to expect. Remember that many of the people with whom you will deal will have little or no knowledge of the laws relating to parking and waiting. Some of them will have no knowledge at all, of their own obligation to avoid causing inconvenience to others and some may consider that their own interests should prevail over those of the public. Try to maintain a courteous attitude notwithstanding that you may be subjected to much provocation. Never invoke for any retaliatory reason the power of enforcement with which you are invested by law. If you decide that it is your duty to invoke it, do so firmly but without departing from the high standard of politeness and good manners expected of a public servant.



3. YOUR SECONDARY ROLE—IMPARTIAL ENFORCEMENT

Your secondary purpose is to enforce the law in respect of waiting offences when you have not been able to prevent them; to that end you must be firm and impartial. You must remember that everyone in this country is equal before the law and that only when faced with a claim for diplomatic immunity need you be concerned about the identity of the person with whom you are dealing. You should invite the claimant to give his name and address and to specify the diplomatic mission to which he belongs. If you act firmly and politely when dealing with vehicle drivers, you are unlikely to give any serious cause for complaint.

9. The TSC’s Questions

9.1 How effective is the Traffic Penalty Tribunal?

This question is principally addressed in the submission made on behalf of TPT as an organisation. In particular we are pleased that our initiative of dealing with appeals where either party wants an oral hearing, on the telephone. At first it may seem strange that they are so successful, but adjudicators particularly appreciate the participation of council officers, as do the appellants. This is especially the case where the appellant wishes to explain the full circumstances and the council officer has an opportunity to hear the evidence and ask questions. Often these cases result in suitable discretion being exercised to the satisfaction of both parties.

However we are not deaf to the constant criticism of TPT, and probably PATAS, that adjudicators are inconsistent. First, there is perceived, and a certain amount of actual, inconsistency in all jurisdictions; otherwise there would not be a need for a strata of higher courts. As a first instance tribunal, adjudicators cannot bind one another’s decisions, nor are they bound to follow the decision of a fellow adjudicator. Having said that adjudicator endeavour to apply a consistent interpretation to the fundamental legal provisions of the jurisdiction.

A particular area of concern to councils and adjudicators alike is where an authority embarks on, say, bus lane enforcement, or introduces a new scheme, or alters an existing one. The first few appeals may be dismissed because the authority produces “library” picture of the signs, which initially appear reasonably to reflect the restriction. However, in some areas “hot spots” develop where there are progressively more appeals, and it emerges from appellants’ descriptions of, for example, how they approached the restriction, that the positioning of the signs are far from adequate. Therefore later decisions about a site might appear to be inconsistent with earlier ones. This is not inconsistency, but a proper consideration of inevitably different evidence from appellants. It is of concern that there are examples of authorities ignoring the later decisions, but persisting in sending drivers copies of the earlier “dismissing” decisions.

Appellant evidence also explains other examples of apparent consistency; in one case the adjudicator might allow the appeal because the appellant is credible whereas in a similar case from the council’s point of view, the appeal is dismissed because the appellant is not believed.

9.2 Should parking policy in London be subject to separate provisions and guidance, given, in particular, its large parking revenue surpluses, its more integrated public transport network and the number of foreign-registered vehicles in the city?

The whole point of civil enforcement is that powers exist to enable each authority to devise policies, introduce regulations and enforce them to the level required to tackle the problems in their own area, whether it is Westminster or Weston-super-Mare. There are sufficient powers available to all authorities to manage traffic in ways appropriate to their locality and meet the needs of their citizens and visitors. To give London authorities additional powers not only detracts from the fundamental principle of the Traffic Management Act in creating a single enforcement regime and framework for authorities to enforce minor traffic contraventions, but serves to confuse, for example, fleet operators, who have to remind themselves of the jurisdiction that has given rise a particular penalty. The London Local Authority Private Acts of Parliament, that are not subject to consultation, can confound motorists’ understanding of what conduct is subject to a penalty in different areas of the England, of which London is still a part.

9.3 How can local authorities strike a balance between using parking policy to manage congestion and using it to encourage people into town centres?

We have received numerous appeals recently where councils have extended charging hours into the evening, and visitors, without realising, have parked as usual going off without reading the pay and display machine. Many have said that if they have to pay for parking in the evening they might as well stay at home and not go out for their affordable treat to take advantage of the “early bird” deals in restaurants and bars. A restaurant owner explained that the “early” diners effectively covered the staff wages, and if that trade dried up the restaurant would probably close. Appellants question if the extended hours are introduced for traffic management purposes. We have also had appeals where car-park charging hours have been extended in rural areas where people walk their dogs. Regular dog walkers ask why.

9.4 Are there steps local authorities can take, while managing congestion, to make it easier for businesses to trade and make deliveries?

An important measure would be to ensure that the TROs actually allow trade vehicles to deliver to business premises. For example, adjudicators encountered problems in one city where a row off licensed chain restaurants were on the side of the main road where loading was banned at all times. On the other side of the road was a church adjacent to a single yellow line with no loading ban (presumably for funerals). So deliveries to the bars could only lawfully be done by the drivers crossing the busy road with loaded trollies, or by unlawfully parking adjacent to the premises to which they were delivering. The authority, of course, had licensed the premises as well as making the TRO.

The problem may be that is it is long-winded and costly to change regulations, yet it must be right that they cannot be changed on an ad hoc basis. However, it is clear that effective and properly thought out TROs are essential to enable commercial, and indeed leisure, activities to take place in all communities.

A further problem for deliveries is that there are no clearly expressed rules as to where loading and unloading can take place, for example, it has traditionally been presumed that these activates can take place in permit bays (how else are home deliveries achieved?), yet some authorities maintain that, even though there may be very long permit bays, unloading is not allowed. In our view the Department for Transport needs to issue unequivocal guidance about these matters.

9.5 Are parking signs clear and comprehensible? To what extent are unclear signs and instructions the cause of breaches of parking control?

On the whole parking signs are well known and recognised across the nation. The Highway Code and the written driving test reinforce familiarity. Increasingly schemes are introduced where there is an entry sign to, for example, a permit zone, without road markings thereafter. There are meant to be adequate repeater signs, but it is not clear what is regarded as adequate. Residents, of course, know about the permit parking arrangements and are not concerned with the signs, which are principally there for visitors. If, for whatever reason a driver misses the (small) entry sign, and there are no road markings, how can they know that all parking is for permit holders? The answer is: by sensitive enforcement that explains the restrictions to those who misunderstand them for the first time, rather than inflexible enforcement that tends to turn ordinary law-abiding folk into campaigners. Additionally, both delivery vehicles and blue badge holders can be confused as to whether they can park in these areas, so it is incumbent on the authority to make it clear what rules actually apply.

March 2013


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