NPAS (now TPT)
Traffic Law Seminar Leeds July 2003
![Traffic Law Seminar
Thursday 3rd July 2003
Leeds
Part1: Policy Issues, Signing and Legislative Matters
Part2: Traffic Regulation Orders (Byelaws)
Speakers:
Caroline Sheppard , Chief Adjudicator TPT, Barrister
Andrew Pulham, Service Development Manager TPT
Gillian Carrington, Barrister; Gray's Inn Square, London
Natasha Peter, Barrister; Gray's Inn Square, London
________________________________________________________________
Part 1
Parking and Signing.
Caroline Sheppard
The principles of the decriminalised parking system were established some 10 years ago under section 66 RTA 1991. The system provides a hearing and adjudication service for challenges to parking penalties.
None decriminalised parking system challenges are dealt with under criminal law at the Magistrates Court under sections 41 to 47 of RTRA 1984.
The adjudicators and adjudication were formed under the 1991 Act. Other than the Chief Adjudicator the positions are part time and lawyers come from many diverse sections of the legal service. Appointments are made by a Joint Committee with the consent of the Lord Chancellor, those appointed must be lawyers of at least five years standing.
The adjudication service oversees some £30,000,000 of excess charges per annum.
The legislation utilised for authorities outside of London is Schedule 3 RTA 1991.
This makes parking enforcement an administrative process and does not provide
for the local authority to see themselves as or replacements for the CPS or the Police. Some 73 councils now have decriminalised parking regimes.
Decriminalised parking does not de-legalise parking matters as.
1. Traffic Regulation Orders (Bylaws) are still required.
2. Statute law still applies as is.
The penalty system for decriminalised parking is an excess charge not a fine. The Act transfers the enforcement to local authorities. This may be by the council or by a private firm that is contracted to private tender. Such systems are responsible for:
* Council Parking Attendants
* Penalty Charge Notices
* Removal and Clamping
The primary problem areas relate to those authorities utilising outside organisations working to private tender. Whilst only 1/2% (15,000) of enforcement is challenged, this does not in any way reflect the actual level of defective tickets issued.
RTA 1991 makes it compulsory that any penalty is reduced if paid within 14 days. Section 66(3) provides the mandatory requirement. 'Lost' tickets are the primary cause of appeal, with many motorists not provided with the chance of a reduced payment.
There is clear evidence in some of the cases that the ticket had never actually been issued.
(see page 5 point 2)
Audits of the current regimes clearly indicate that 50% of penalties are paid within 14 days taking the reduced fee.
Criminal Legislation
There is still a requirement for the local authority to make Traffic Regulation Orders (Bylaws) under the Road Traffic Regulation Act 1984, this applies to both off and on street parking restrictions. The relevant legislation is:
i. Permitted parking areas (Para 1 Schedule 3)
ii. Special parking areas (Para 2 Schedule 3)
iii. Off street car parking and loading areas.
Standard applications must be made for permitted and special parking areas
Councils and the Adjudication Service
The Council must
form a joint committee
sign up to the tribunal scheme
fund the tribunal (the charge for the service is 65p per ticket issued)
Appeals: The council are the respondents to any appeal.
The council: Must not relate the two roles must separate the thought that the funding stream allows a 'piper calls the tune' attitude and accept negative adjudication.
When an authority applies for decriminalised status they are served with PNN orders (a section 101 agreement). Councils regularly fall foul of written orders. Sections 73,74 are amended by the PNN order. County Councils must sign up in tandem with Districts, there can be no separation of responsibility, but the County are not enforcing authorities.
Each parking authority must:
Set additional parking charges: Sect 73 RTRA 1984 - Penalty Charges
- Remove Charge
- Storage Charge
The authority must have regard to the Secretary of State guidance it is compulsory to include a scale of charges. Failure to apply those set requirements has had repercussions. Bristol was obliged to refund nearly £1,000,000 resulting from a failure to comply with simple requirement.
Setting Charges
The council creating a decriminalised system must set charges on the initial application to the PPA, they must be put before and agreed at Committee. The charging system must be set at the beginning as there is no second trip to government on these matters.
Charges for clamping and removal must only cover the cost of that act, there can be no profit making. It is clear that smart residents are basing challenges to the legislation based upon the costs set by the council.
Councils are not permitted to make a surplus from parking restrictions.
Just because a maximum figure is quoted should not be the mechanism for adopting that figure.
It was neither envisaged or intended that excess charges shall or should fund decriminalised parking operations.
The Parking Authority may issue PCN under sect 66(1) RTA 1991, the PCN must contain information (sect 66(3) RTA 1991) ticketing is discretionary.
(Westminster have a bonus scheme for the NCP (private contract) wardens, this had led to a number of issues relating to appeals)
The PCN has a mandatory information inclusion;, without that all notices are void.
The NPAS are currently dealing with one parking authority who have issued some 40,000 defective notices.
Notices to Owner
Notice to owner must contain set information (Para 1 Schedule 6)
Andrew Pulham
It is not widely known or understood that penalties are not a debt, and there is no requirement to automatically claim, this status remains until all the processes in Schedule 6 are complete and a charge certificate has been issued.
Councils must always consider the representation of the owner and give reasons why action is taken. Failure to do so will lead to successful appeals against the penalty.
Areas of conflict for councils: -
Consider the challenge (financial interest?)
Appoint adjudicators (independence?)
Contracted Parking Attendants ( Performance quotas?)
Decriminalisation must be seen as purely and administrative process, it should be a transparent system and as a public body the council must act fairly, the parking authority must look objectively at any challenge.
Additionally it is important that the council also minds its language, the choice of wording is critical:
Criminal wording Decriminalised wording
Offence Contravention
Fine Penalty charge
Admits Agrees
Claims Says
Guilty Contravention occurred
A person is no longer guilty or not guilty of an offence.
Signing
“The failure of a local authority to apply signing to a parking regime under criminal or decriminalised systems which does not meet TSRGD 2002 without the Secretary of States authority will result in successful challenges. Incorrect signing result in notices being voided.”
Caroline Sheppard
Adjudication in Action
The Parking Adjudicators function is identical to the council role making a finding of fact
Adjudicating Regulations 1999 binds the Parking Adjudicator who may elect to hold a hearing. The PA applies the law and determines the appeal accordingly
It is up to the council however to prove:
- The penalty is payable
(the contravention actually occurred)
- Who is liable for the payment
(Registered keeper? Actual Owner?
the penalty is totally the liability of
the owner).
- the mandatory procedure has been
followed completely
Section 82 RTA 1991
Presumes the owner is liable, this is however a rebuttable presumption.
A garage owner when repairing a vehicle and left the car on the road, he was
not responsible for excess charges. Those penalties remain the sole liability
of the owner of the vehicle regardless of ignorance of the contravention.
Collateral Challenges
These do and are a growing trend.
1. Bexley - High Court
The authority had issued penalties for a failure to display a current excise licence in off road car parks. It was decided in the Court that no parking order could be a valid route for the setting up of a penalty for this specific contravention.
Local Authority therefore lost it’s case and the authority to levy such
a penalty.
Many authorities continue to undertake these actions against the finding / ruling of the High Court.
2. Sect 66 RTA 1991.
PCN not placed on a car.
The PCN must be fixed to the vehicle or handed to the driver failure to serve correctly revokes the right to charge.
3. Schedule 6, failure to serve notice on the owner as required.
Notices
Article 1, Schedule 6 gives the power to a local authority to issue a notice on a person who appears to be the owner of a vehicle subject of a penalty.
Discretion
Regardless of views held by some authorities, the Human Rights Act 1998 strengthens the need for proportionate behaviour by authorities.
The council: Can and must consider exercising discretion at any stage of the process
The Adjudicator: Cannot interfere with a properly considered discretion on the basis of the same facts.
Exemptions: If an exemption applies there has been no contravention, was the parking authority right to issue the PCN.
The evidential burden is on the appellant - though it is not necessary to undertake this by writing to the parking authority.
Consideration must be given to the question was the matter an exemption or mitigation
Grounds for Appeal
* The alleged contravention did not occur
* The appellant was not the owner
* The order was invalid
* The owner was a hire company, the driver signed a contract
* Excessive penalty charge levied
* Vehicle had been taken without consent.
TRO's and Signing issues
i. Regulation 18 of the 1996 regulations
ii. What if a sign does not comply
iii. What if the line is rubbed away
iv. What if the line does not reflect the TRO
v. What about abolished TRO's
vi. Contravention of the sign
Facts:
TRO's are actually Bylaws - the old adage 'ignorance is no defence' does not apply to a TRO. (Caroline Sheppard).
Des minimus will always fall to the favour of the offender.
Time limited TRO's are non-enforceable as the signing cannot match
Regulation 18.
TRO's
i. Who drafted them
ii. Do the articles say what the council actually means
iii. Schedule and map must be included
iv. Amendments - should be correct not hand written
v. Can you read them
vi. Has the authority read them
It is important to note that the wording must reflect the requirement
otherwise the offence cannot be complete.
As the appellant takes the council to appeal, not the other way round, it is up to the authority to get all their orders up to scratch and presentable.
In evidence it is imperative that the offence is fully made up.
Regardless of the decriminalisation of parking, the Ombudsman is far from out of the loop. A wise appellant will combine appeals to the NPAS with complaint of mall administration to an Ombudsman.
The Parking Adjudicator just deals with the certificate, which means that the Parking
Adjudicator may find for the appellant on a matter included within the documentation that was not noted by the motorist. Such a matter may relate to any other matter included within the documentation resulting from an administrative failure or omission by the local authority.
Authorities should not react adversely to such decisions, the PA has to view the evidence completely and is impartial. It is therefore important the local authority undertake all its functions correctly.
Any hand made amendments to TRO's or incorrect wording will result in immediate finding in favour of the motorist. In a world of word processors it is not acceptable to be provided with hand amended orders.
Civil Court Judgement
Parking penalties levied at Northampton Civil Court cannot by case stated be a CCJ, such a penalty cannot effect the credit rating of the appellant and councils who threaten such actions are wrong in both fact and procedure.
Time Frames
Notice to appeal - 28 days, 3/4 months is not bad. However if the process takes more than 12 months to process by the authority the case will definitely shift in favour of the motorist. The PAS believe that a statutory 6 month statutory limit should be set.
Costs
Parking Adjudicators will not normally award costs unless the local authority has been clearly unreasonable.
Part 2 Traffic Regulation Orders (Bylaws)
Gillian Carrington ] Barristers, Gray's Inn Square, London
Natasha Peter ]
Administrative Law and Scrutiny
The making of a TRO (Bylaw) places an obligation on the relevant authority to create the order for the correct purpose.
Additionally there is a duty to consult. Consultation must take the correct form, merely serving notice is not enough, nor can an authority disregard the views or opinions of any consultee to further the authority, officers and/or members goals.
Breaches of those requirements invalidate the order(s). Such orders have and will continue to be struck down by courts, Judges take a dim view of authorities that fail in these duties and therefore act outside of their powers.
Relevant Legislation
Road Traffic Regulation Act 1984
Highways Act 1980
Wildlife and Countryside Act 1981 (footpaths)
Human Rights Act 1998.
1. Human Rights Act 1998
Article 1 of the 1st Protocol applies to the removal of vehicles, in that there is
an interference with property when it breaches law.
The Act requires public authorities to act proportionally.
To date the only precedence set under HR 1998 relates to Customs and Excise. The Customs and Excise Act empowers the seizure of goods and vehicle when a person enters the country with tobacco and drink exceeding the personal level set by the government. The C & A Act effectively allows the seizure of everything.
Court and VAT Tribunals were hearing more and more appeals against such seizures. Hoverspeed financed a High Court appeal. The court decision was that proportionality was required when action was taken to remove a person's vehicle. The Judge stated that
'there must be a mechanism in place to evaluate the reasons for removal'.
Predicted Challenges
Article 6 of the convention provides a right to a fair trial by independent tribunal.
This article is leading to challenges, at this time such a challenge is being heard in Edinburgh at this time. The basis of the challenge being that a Council's Adjudicator is not impartial.
Domestic Law
Local Government Act 1972 (Parish Council Powers)
Natasha Peter
The Making of a TRO
Challenges
Challenges are usually based upon section 122 of the RTRA 1984.
The local authority may only make an order if expedient in certain
circumstances.
i. For the avoidance of danger to persons or traffic
ii. To prevent damage to property or the highway
iii. To facilitate the passage of vehicular traffic on a road
iv. To preserve or improve the amenities on a road in the
area of heavy commercial traffic
In Sam Smiths v NYCC an appeal based on a prohibition in advance of an act
in that no danger was caused until the order was passed was overturned, allowing authorities to legislate in anticipation.
The Secretary of State has powers to make direction under Schedule 9 of the Act to do or not do certain acts, but only if the local authority fails in it's duty under section 122.
Gillian Carrington
Section 122
This is the statutory provision to secure expeditious and safe movement of traffic and the provision of parking.
It is a statutory duty. Failure to consider or act can result in the TRO (Bylaw) being quashed.
This was the case in LPC v Leicester City Council
The Hamilton Industrial Estate Order prohibited the waiting at any time on
the state road. The appeal followed actions regarding the parking of trailers
on the highway.
The claimant stated that Leicester City Council had failed to ensure that there
was adequate access to the paper mill and a failure to provide adequate
parking under the duties of section 122.
The court fully agreed with the complainant that the local authority had failed to provide reasonable access, provision of parking and the free passage of vehicles. The local authority had a duty to act regardless of its objections. It was held not to be reasonable to prevent all vehicles parking just to stop trailers being left in the road.
It is therefore mandatory rather than just advisory for a local authority before and at all times to consider the duties imposed by section 122.
It is clearly not sufficient for the authority to state that 'no one objected' or to fail to consider in full the objections made or raised. A balanced debate must be entered into during the consultative process.
Bad Reasons for Creating Orders
Devious Reasons
UK Waste Management appealed against an order purportedly made for
experimental purposes. In reality the local authority had been attempting by devious means to restrict access and use of a specific site by prohibiting access.
The Traffic Order was held to be invalid and was quashed in its entirety.
Raising of Revenue
R v Camden LBC ex parte Cran
This related to the provision of parking restrictions on Primrose Hill
part of the reasoning was for the raising of revenue.
The High Court ruled that the Road Traffic Regulation Act is not a
revenue raising mechanism. Any order made with such an intent is
ultra vires and void.
Any suggestion of revenue raising and 'bang goes the order' (and the consequential enforcement that was undertaken).
Section 2. Types of Order
Loading or Unloading Sprake v Tester is the precedence and test for
the actions of a driver.
It is clear that a commercial vehicle or vehicle
used for business purposes is permitted to use
a loading bay to unload or load goods of any
description.
Private motorists cannot use the same facility
unless the goods are too large or heavy to be
easily carried.
Loading and unloading is a minefield and a considerable number of precedents can be found in Wilkinson's.
Section 3 RTRA 1984
Sect 3 of the act prohibits:
i. the creation of an order which prevents access for pedestrians
at any time.
i. preventing access for vehicles of any class for periods of more
than 8 hours in any 24 to any premises situated on or adjacent to a road.
This should prevent excessive uses of access only orders on say pedestrian
zones.
Experimental Orders
Experimental orders must be a genuine experiment, not a mechanism to obtain a restriction by other mechanism. There must be a transparent monitoring and examination system that provides feedback and empirical evidence resulting from the experiment.
Such orders are only valid for a maximum of 18 months, though they can be extended a further 6 months following a Public Enquiry.
Local Government Act
Section 111 of the Local Government Act provides the power to a local authority to discharge its duties including management of parking off street. The authority could provide an off road parking order under section 111 without having to resort to the restrictions and consultation under a TRO.
This is reinforced by section 21(1) Housing Act 1995 which allows control of a housing estate.
Natasha Peter
Blue Badges
The Blue Badge is a national scheme. The badge allowing parking on street without restrictions if within parking bays, unless a sign says otherwise. On yellow lines such a facility is limited to 3 hours.
The scheme does not allow parking in areas which cause an obstruction.
However, authorities should be mindful that a disabled person's vehicle cannot be clamped or removed. Movement is only permitted to a location nearby which reduces the danger to other road users.
Profit Making/Precision / Procedure
Profit
A reminder that profit cannot be the driving force or intent for a parking scheme.
Precision
Precision in the wording of an order is of critical importance. Failure to use precise wording renders an order unenforceable in either regime.
Procedure
If the procedure undertaken by an authority is wrong this creates major issues for the future viability of any order. The courts take a dim view of failures in duty. Schedule 9 RTRA 1984.
Effective consultation
Consultation has to be fair and effective, based upon a genuine interchange
of views. This work has to be meaningful and provide an authority with enough
information to make a reasonable judgement.
The consultation process must provide enough time for a consultee to
research and respond to the information.
The consultation process must play more than lip service to the procedure
and provide detail of what and why the proposals are being made. Merely
serving notice is not enough to meet consultative requirements.
The Cran v Camden LRC case proves the validity of a challenge to administrative law.
Camden was wrong in a number of areas:
The reasons were financial
There was a failure to consult correctly
Officers had shut their minds to the views of the complaint
Officers did not give full views of the complainants to the committee
The committee were therefore mislead
The court ruling was that the order was quashed in its entirety.
Publication
Given the ability to challenge based upon consultative abuse, an authority should err on the side of caution. Publicise as widely as is needed, there is no longer a need to advertise in the London Gazette
The authority must also be mindful that the proposals must be available for public scrutiny for 6 weeks.
Article 8 HR 1998
Challenges against parking are being brought at this time under this article. No outcomes are available on this day.
Objections
Given the statutory requirement for adequate consultation authorities must show they have included a valid examination of the objector's proposals.
Objections are a standard part of the consultation process. The local authority should set out their good reasons in full, and include the views of all objectors.
Officers should not blight the process by sticking to their own views as opposed to the objectors. That is a matter for a committee.
Objectors
All objectors must be given written notice explaining the reason for the order and the making of it.
Public Inquiry
An objection that is not vexatious or malicious at the time of the making up of the order will lead statutorily to a public enquiry.
The government offices in Newcastle are the authority/agency for challenges by public enquiry.
The local authority has a statutory duty to notify the government office within 14 days of the making up process of any outstanding objections. The existence of any objections that are not withdrawn must be notified to that office.
Gillian Carrington
Challenging Permanent Orders
Schedule 9 par 6 RTRA 1984 is the mechanism to the challenge of a permanent order.
The preliminary route is to take the challenge to the Secretary of State before entering into the more formal route of a hearing to the High Court it is dealt with as a Judicial Revue. And these are the routea to be taken by 'any person wishing to challenge all or part of a permanent order'.
Statutory Appeal
During the process of appeal the High Court will suspend the order in the interim. The Court may:
1. Quash - render null and void the order if:
any failure to consult or take views into consideration
is established.
2. Quash in part - any segment of the order provided that part
can be severed from the order.
Temporary Orders
In order to challenge a temporary order a Judicial Revue has to be undertaken. The window of opportunity is limited to a 6 weeks from the making of the order.
Invoking the Secretary of State
The Secretary of State has wide ranging powers to vary and change an order these are based within Schedule 9 (parts 7,8,9) RTRA 1984. This is a primary route to take in challenging an order before taking the route of Judicial Revue or appeal.
Experimental Orders
Authorities must state at the point of advertising whether or not they intend to take the option of making an experimental order permanent at a later stage. Failure to do so voids the later order.](NPAS%20seminar%20Leeds%20July%202003_files/shapeimage_2.png)
